1.Before me is the Summons for Review dated 13th April 2023 brought under s. 47 of the LOSA and Rule 59 of the P&A Rules.
2.It seeks that the Protester Benson Mulinge Yumbya be substituted with James Nzomo Mulinge; that the certificate of Confirmation of Grant issued on the 16th February 2023 be stayed pending the hearing and determination of the 1st objector’s objection.
3.The grounds for the application are that the Confirmed grant did not include the protesters. All the protesters were dead by the time of the confirmation and were not replaced, not all the beneficiaries were present during the confirmation hearing.
4.It is supported by the affidavit of James Nzomo Mulinge. He depones that his father Benson Mulinge Yumbya and one Esther Ndunge Kieti filed an objection dated 6th December 2013, that the basis of their protest is that they have an equal interest in LR KALAMA/IIUINI/276 and 833. That the administrator had included the two parcels of land in the distribution of the estate of the deceased without catering for the interests of the protesters; that the matter proceeded for confirmation without the hearing of the protest. Annexed to the application is a letter from the Office of the Chief of a location in Shimba Hills. The name of the Location is illegible in the letter dated 17th September 2019. The letter contains the list of the beneficiaries of the estate of Benson Mulinge Yumbya (deceased), three daughters and seven sons.
5.The application is opposed by the affidavit of Newton Mutiso Kyungu. That the application is incompetent as the applicant lacks the locus standi for lack of letters of administration for the estate of Benson Mulinge Yumbya, and nothing had been placed before the court to show that the applicant was the personal representative of the estate of his deceased father.
6.That the objection of one Esther Ndunge Kieti was deemed as withdrawn as per the ruling delivered on 1st December 2021 annexed to the reply. That as at that time the Benson Mulinge Yumbya had commenced proceedings in the ELC Court and nothing has been placed before court to demonstrate the outcome of the case.
7.The applicant filed written submissions. He cited Rules 40 (4), (5) and 40(8), and 41 of the P&A Rules. It was argued that there was an apparent error on the face of the record with regard to the directions taken with respect to the protest. He seeks that it is necessary to stop the distribution of the estate. That Esther Mukui Muli the daughter in law of the deceased was not present at the confirmation.
8.It is submitted that the case referred to by the Petitioner was Machakos HCC 95 of 1989 Simon Kieti Yumbya v Benson Mulinge Yumbya & Kyungu Yumbya Ngumi in which it submitted that the court made an award to the effect that the 1st objector, the 2nd objector and the Petitioner were to have equal shares in Kalama/IIuni/276 and 833 . The award is not attached.
9.The Deceased died on 4th March 2000 and was survived by the Petitioner, his four siblings and a daughter in law Esther Mukui Muli. His estate was the two properties mentioned here and shares in KIU Ranching member no. 7041635/70
10.I have carefully considered the application, the affidavit evidence and the submissions. The only issue is whether the application is tenable.
11.The applicant has deponed that his father was a protester in the matter but died before he pursued the protest. I have noted that there were two protesters and upon the demise of the 2nd protester her family withdrew the protest.
12.With respect to the applicant, it is correct that he has not filed any document to demonstrate that he is the personal representative of the estate of his father to empower him to file the application and seek the orders therein.
13.It has been argued that during the confirmation process all the beneficiaries were not present. I have perused the record of 16th February 2023 and the record shows that the learned Judge noted the presence and consent of all the beneficiaries to the proposed mode of distribution and proceeded to issue certificate of confirmation of grant.
14.The applicant has alluded to an award in a civil case in favour of his deceased father, however the said award is not annexed to the affidavit and this is only mentioned in the submissions. Submissions cannot be evidence. If indeed the applicant had intended for this court to rely on this case it would have been annexed to the affidavit.
15.In the ruling dated 1st December 2021 (Dulu J) the learned Judge alluded to a case in the ELC court which the 1st protester had mentioned to have filed. The Civil case Machakos HCC 95 of 1989 Simon Kieti Yumbya v Benson Mulinge Yumbya & Kyungu Yumbya Ngumi the applicant has submitted about is a 1989 case and it is noteworthy that the judgment or ruling is not annexed to the application for the perusal of this court and for the court to understand what was going on there and what effect it may have on this application. It is not clear why counsel would merely mention it in the submissions if indeed it was at the center of the applicant’s claim
16.In the end I find that the applicant has not establish that indeed he has the locus standi of being the representative of the estate of his deceased father.
17.The issue of the property mentioned in the application appears to be the subject of a civil suit whose alleged award is not before court but in any case if there was an issue of ownership of the said property, that is for the ELC court and not this court.
18.In the circumstances I find that the application that the certificate of Confirmation of Grant issued on the 16th February 2023 be stayed pending the hearing and determination of the 1st objector’s objection is not merited and the same is dismissed with no orders as to costs.