Case ID:185326

In re Estate of Reuben Jones Kiambuthi (Deceased) [2021] eKLR

Case Metadata

Case Number:

Succession Cause 99 of 1997

Parties:

In re Estate of Reuben Jones Kiambuthi alias Jones Reuben Kiambuthi (Deceased) [2021] eKLR

Date Delivered:

15 Oct 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

In re Estate of Reuben Jones Kiambuthi (Deceased) [2021] eKLR

Court Division:

Family

County:

Nairobi

Case Outcome:

Application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 99 OF 1997

IN THE MATTER OF THE ESTATE OF REUBEN

JONES KIAMBUTHI alias JONES REUBEN KIAMBUTHI (DECEASED)

LUCY WANJIKU KYAMBUTHI...............................................................................APPLICANT

VERSUS

PETER NGUGI KIAMBUTHI........................................................................1

ST

RESPONDENT

JOHN MBURU KABAA KIAMBUTHI........................................................2

ND

RESPONDENT

RULING

(1) Before this Court for determination is the Notice of Motion Application dated

29

th

November 2019

by which the Applicant

LUCY WANJIKU KYAMBUTHI seeks

the following orders:-

“1. Spent.

2.

THAT this honourable court be pleased to cite respondents PETER NGUGI KIAMBUTHI and JOHN MBURU KABAA KIAMBUTHI herein for contempt of the court order issued on 25

th

April 2018 by Lady Justice Muigai and commit them to civil jail for a period not exceeding six (6) months for disobeying the order in issue.

3.

THAT this honourable court be pleased to order and compel the Respondents PETER NGUGI KIAMBUTHI and JOHN MBURU KABAA KIAMBUTHI to adhere to the orders issued on 25

th

April 2018

4. THAT the Directorate of Criminal Investigations, Kiambu and or OCS Kikuyu Police Station do oversee the compliance of the orders issued by Lady Justice Muigai on 25

th

April 2018.

5. THAT the honourable court grants any other order or further orders of the honourable court geared towards protecting the dignity and authority of the honourable court deemed expedient in the circumstances.

6. THAT costs be provided for.”

2. The Application was premised upon

order 52

of the

Rules of the Supreme Court of England

and

Section 5

of

the Judicature Act (Cap 8),

Laws

of Kenya, sections 1A, 1B and 3 of the civil Procedure Act, Sections 63 ( c) and ( e), Civil Procedure Act, Order 40 Rule 3

of the

Civil Procedure Rules

and

Sections 5, 27 (b) ( e) (f) (h) (k) and 28

of the

contempt of court Act, Section 36, High Court (organization and Administration) Act,

and all other enabling provisions of the law. The Application was supported by the Affidavit of even date and further supporting affidavit dated

2

nd

June 2021

both sworn by the Applicant.

3. The 1

st

Respondent

PETER NGUGI KIAMBUTHI

opposed the application through his replying affidavit dated

1

st

April 2021

.

4. The 2

nd

Respondent

JOHN MBURU KABAA KIAMBUTHI

filed a Replying Affidavit dated

4

th

April 2021

in opposition to the application. It is important at this point to note that vide the Notice of withdrawal dated

2

nd

June 2021

the Applicant withdrew in its entirety the application against the 2

nd

Respondent

JOHN MBURU KABAA KIAMBUTHI

. The matter therefore proceeded as against the 1

st

Applicant

only

.

5. The application was canvassed by way of written submission. The applicants filed written submissions dated

2

nd

June 2021

whilst the 1

st

Respondent relied on his written submission dated

15

th

July 20201

.

BACKGROUND

6. This succession cause concerns the estate of

REUBEN JONES KIAMBUTHI

alias

JONES REUBEN KIAMBUTHI

(hereinafter the Deceased) who died on

16

th

November 1994

. The deceased is said to have died testate having left a written Will dated

23

rd

August. 1994

. The Deceased was survived by the following persons:

(i) Margaret Wambui Kyambuthi – widow

(ii) Peter Ngugi Kiambuthi – son

(iii) Jones Lawrence Kinyoyia - son (now deceased)

(iv) Richard Njoroge Kiambuthi - son

(v) John Mburu Kabaa Kiambuthi - son

(vi) Moses Kinuthia Kiambuthi – son (now deceased)

(vii) Lucy Wanjiku Kyambuthi – daughter

7. Following the demise of the Deceased the widow

Margaret

Wambui Kiambuthi

and

Peter Ngugi Kyambuthi

(son) who were named as executors in the written Will obtained a grant of Probate of Written Will dated

22

nd

April 1997

. The said grant was duly confirmed and a certificate of confirmed grant dated

11

th

July 1997

was issued by the High Court.

8. Thereafter the Applicant herein

Lucy Wanjiku Kyambuthi

and

Richard Njoroge Kyambuthi

(now deceased) filed summons dated

3

rd

July 2017

, seeking Revocation/Annulment of the Grant issue in this matter. Hearing of that summons for Revocation of Grant commenced before

Hon Lady Justice Muigai

on

30

th

May 2018

. However, the hearing was not concluded as the Hon Judge was transferred to another division of the High Court.

9. The genesis of this application are orders which were made in this succession cause by Hon Lady Justice Muigai on

17

th

April 2018

which orders read as follow –

“1. The Estate of the deceased Jones Reuben Kiambuthi shall be preserved under section 45 LSA Cap 160 pending the hearing and determination of the application for revocation of grant.

2. Lucy Wanjiku Kiambuthi, the applicant shall remain on the suit property LR 2828 until hearing and determination of the application of revocation of grant.

3. The matter of the contested suit properties, assets that comprise the estate of the deceased including LR 2828 shall be determined by Deputy Registrar Family Division summoning the Land Registrar Kiambu to provide green cards/hereditary/background of the suit properties;

(a) LR 2828

(b) Dagoretti/Kinoo/1838

(c ) Dagoretti/Kinoo/1837

(d) Dagoretti/Kinoo/T384/25

(e ) Dagoretti/Kinoo/878

4. If they are part of the deceased estate and available for distribution or not.

5. The matter shall be mentioned within 30 days for the Land Registrar to provide the said information to court.

6. The

staus quo

be maintained until 30

th

May 2018 at 11.00 am.

7. The court will read and compile notes of the court file.”

10. The Applicant submits that the 1

st

Respondent has knowingly and maliciously failed to obey the above orders hence the application seeking to have the 1

st

Respondent cited and punished for contempt.

Analysis and Determination

11. I have carefully considered the present application, the Affidavit in reply as well as the written submissions filed by both parties. The only question for determination is whether the 1

st

Respondent is in contempt of the court orders.

12. The Applicant submits that contrary to the orders issued on

17

th

April 2018

for perseveration of the estate of the Deceased, the 1

st

Respondent has proceeded to subdivide the Deceased property. That the 1

st

Responded has demolished structures and erected new structures on the estate property. That he has fenced off and created new boundaries, evicted tenants and re-allocated property belonging to the estate.

13. The Applicant alleges that the 1

st

Respondent has threatened to evict her from the property in which she is residing (being

LR NO. 2828

) in blatant disregard of the orders directing that she remain thereon pending the hearing and determination of the summon for revocation of grant. That the very safety of the Applicant and other legitimate heirs to the estate is being threatened.

14. The Applicant avers the estate of the Deceased stands to suffer irreparable harm unless the 1

st

Respondent is stopped from his wanton destruction of the estate property.

15. The 1

st

Respondent opposed the Application. He submits that the orders of

17

th

April 2018

were never served upon him personally. That on

30

th

May 2018

the matter was again mentioned before Justice Muigai and no application was made for extension of said orders and no orders reserving the

status quo

were made by the court. As such, it is the position 1

st

Respondent that the subject orders lapsed on

30

th

May 2018

.

16. The 1

st

Respondent asserts that most of the properties forming the estate have already been sold or sub-divided by the beneficiaries and new owners, and therefore said properties cannot be said to form part of the estate. He alleges that the 1

st

Applicant sold off her own inheritance and thereafter moved into their mother’s house. That on

2

nd

November 2018

his mother requested him to assist her to remove the Applicant from said house. The 1

st

Respondent further alleges that the Applicant has not come before the court with clean hands as she did not reveal to the court that she had already sold off her own inheritance, thus she does not merit the exercise of the courts discretion in her favour.

17. The 1

st

Respondent states that the Applicant has occasioned him financial loss by writing to the

National Lands Commission,

the

Kenya National Highways Authority

and the

National Oil Corporation

to block payment due for the compulsory acquisition of land. That the Applicant has also blocked the 1

st

Respondent access to financing from banks by putting restrictions on his parcels of land. He states that the estate of the Deceased has been fully distributed and that this application is nothing more than a furtherance of the Applicants personal vendetta against him as he has always been protecting their mother against the Applicants schemes. The 1

st

Respondent submits that the present application is a mere sideshow and urges the court to dismiss the same in its entirety and to award him costs.

18. The 1

st

Respondent firstly raises the issue that though the application refers to orders made on

25

th

April 2018

there are were no orders made in this matter on

25

th

April 2018

and therefore the application is defective in nature. I have perused the court record and confirm that indeed no orders were made in this matter on

25

th

April 2018

. The orders which were cited by the Applicant were actually issued by

Hon Justice Muigai

on

17

th

April 2018

. Thus, there is clearly an error in the date cited as when the orders in question were made.

19. Such an error in my view is not fatal to the application. To err it is said is human. The Applicant has cited in the application the orders which she is referring to. It is clear from the record that said orders were actually made on

17

th

April 2018

. The 1

st

Respondent himself has conceded to this.

Article 159 (2) (d)

of the

Constitution of Kenya 2010

, exhorts courts to administer substantive justice

without undue regard to procedural technicalities

. In the circumstances, I find that the error in the citation of the date of the subject order is a technicality which this court will overlook as both parties are very clear which orders are being referred to.

20. It is trite that courts do not make orders in vain. Any party to whom a court order is addressed is obliged to obey said order whether he agrees with it or not.

Section 5

or

Act No 460, 26

provides that:

“5 Every superior court shall have power to

(a) Punish for contempt of court on the face of the court.

(b) Punish for contempt of court; and

(c) Uphold the dignity and authority of subordinate courts”.

21. The only remedy available to a party who is dissatisfied with an order issued by the court is to seek a review of said order or to appeal against the same. But for as long as court order remains valid it is binding on all parties. To suggest otherwise would lead to disorder and mayhem in society.

22. In the case

of ECONET WIRELESS KENYA LIMITED – VS- MINISTER FOR INFORMATION AND COMMUNICATION OF KENYA & AUTHORITY[2005] eKLR

Hon Justice Ibrahim (as he then was) states as follows –

“

It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times

.

The court will not condone

deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against which an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular or void.

(

emphasis

)

23 Likewise in the case of

T.N. Gadavarman Thiru Mulpad v Ashok Khot and anor [2006] 5 SCC

,

the

Supreme Court of India

in emphasizing the dangers of disobeying court orders held as follows: -

Disobedience of this court’s order strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. Hence, it is not only the third pillar but also the central pillar of the democratic state. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the Courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our Constitution scheme will give way and with it will disappear the rule of law and the civilized life in the society.

That is why it is imperative and invariable that Court’s orders are to be followed and complied with

. (own emphasis)

24. I therefore find that the orders issued by

Hon Justice Muigai

on

17

th

April 2018

remained binding on all the parties to the cause unless and until the same were set aside and/or lapsed. Proceedings for contempt of court are quasi criminal in nature. If convicted of contempt a contemnor stands to be jailed therefore suffering a deprivation of their personal liberty.

25. For this reason, the standard of proof required against an alleged contemnor is higher than the standard of proof required in an ordinary civil case. Before a finding of contempt can be made, there must be a demonstration of

willful

and

deliberate

disobedience of a courts order.

26. In

GATHARIA K. MUTIKIKA – VS BAHARINI FARM LTD [1985] KLR 227

it was held that-

“A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…… it must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature.

However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge

… Recourse ought not to be heard to process contempt of court in aid of a civil remedy where there is any other method of doing justice.

The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject…… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt

… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.” (own emphasis)

27. In the light of the gravity of the personal consequences that would ordinarily flow from a finding of contempt, the law requires proof that the order in question was brought to the attention of the alleged contemnor as proof that he/she had personal knowledge of said order.

In

OILFIELD MOVERS LTD – VS – ZAHARA OIL & GAS LIMITED [2020]eKLR

the court stated -

“It is important however that the court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or motive of the existence of the order of the court forbidding it. The threshold is quite high as it involves possible deprivation of a person’s liberty…..”

28. The applicant has alleged that the 1

st

Respondents lawyer was present in court when the orders of

17

th

April 2018

were made. She cites this as proof of the fact that the 1

st

Respondent had personal knowledge of said orders.

29. The 1

st

Respondent in his Replying Affidavit dated

1

st

April 2021

categorically denies ever having been personally served with the orders dated

17

th

April 2018

or indeed any other orders issued in this cause.

30. I have perused the proceedings of

17

th

April 2018

. There is an indication that a

Ms Wangui

Advocate was present in court holding brief for

Mr Kimani Gichuhi

for the Applicant. A

Ms Nakato

Advocate was indicated as present in court holding brief for

Mr Nyiha

for the Respondent. It is therefore clear that the subject orders were made in the presence of counsel for both parties.

31. However, the fact that the 1

st

Respondent’s lawyer was aware of the order does not remove the need for personal service upon the 1

st

Respondent himself. There is no evidence and indeed it has not been alleged by the Applicant that the orders of

17

th

April 2018

were ever served

personally

upon the 1

st

Respondent. No affidavit of service has been annexed to this application, on evidence of personal service upon the 1

st

Respondent.

32. In order to find a person guilty of contempt there must be proof of willful and intentional disobedience of a court order. In

MAHINDERJIT SINGH BITTA – VS UNION OF INDIA & OTHERS 1A NO 100 OF 201O

the Supreme Court of India stated as follows: -

“In exercise of its contempt jurisdiction the courts are primarily concerned with enquiring

whether the contemnor is guilty of intentional and willful violation of the order of the court, even to constitute a civil contempt.

Every party is

lis

before the court and even otherwise, is expected to obey the orders of the court in its spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution (own emphasis)

33. In order to prove willful and deliberate disobedience of a court order; it must be shown that said court order was brought to the attention of the alleged contemnor by way of personal service.

In

Katsuri Limited v Kapurchand Depor Shah [2016] eKLR

, citing

Kristen Carla Burchell v Barry Grant Burchell

(Eastern Cape Division case No. 364 of 2005

), it was stated that “

in order for an applicant to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, knowledge of the terms by the respondent, failure by the respondent to comply with the terms of the order

.”

34. The Applicant claimed that copies of the order were plastered all over the suit premises. This in my view does not amount to personal service as there is no proof that the 1

st

Respondent went to the suit premises and caught sight of said orders.

35. All in all, I find that given the absence of proof of personal service upon the 1

st

Respondent, he cannot be said to have willfully disobeyed said orders. The power to punish for contempt is a discretionary power, which ought to be exercised sparingly. In

CAREY – VS LAIKEN

---- it was held that: -

“

a court’s outrage might be treated as just so much bluster that might ultimately dampen the role and authority of the very judicial power it seeks to protect.

The court’s contempt power should be used cautiously and with great restrain. It is an enforcement power or last resort rather than first resort

”. (own emphasis).

36. The applicant and the 1

st

Respondent are siblings. From their affidavits it is clear that some sort of power struggle is going on between the two. Unfortunately, much judicial time and resources have been wasted by prosecuting this application for contempt, instead of moving directly to the hearing of the summons for revocation. I find no merit in the present application and in the premise, I dismiss in its entirety the notice of motion dated

29

th

November 2019

and direct that each party pay its own costs.

37. This is a

1997

matter. Since

2017

, the summons for revocation has not been determined. In order to expedite the case I direct that parties now take dates for hearing of the summons for revocation of Grant dated

3

rd

July 2017

.

DATED IN NAIROBI THIS 15TH DAY OF OCTOBER, 2021.

........................................

MAUREEN A. ODERO

JUDGE