[2023] KEHC 25614 (KLR)

CKC & another ((Minors Suing Through their Mother and Next Friend JN)) v Chuba & another (Succession Cause 436 of 2004) [2023] KEHC 25614 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25614 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause 436 of 2004

G Mutai, J

November 3, 2023

Between

CKC

1st Applicant

CC

2nd Applicant

(Minors Suing Through their Mother and Next Friend JN)

and

Ali Chuba

1st Respondent

Aisha Nifusi Chuba

2nd Respondent

Ruling

1. What is before this court is a notice of motion dated 18th July 2023. The said application seeks the following orders:-a.Spent;b.That this honourable court be pleased to review, vary and /or set aside the ruling delivered by this court on 31st January 2022 and include the biological mother to the late Shaurigy Chuba Bakari as beneficiary /heir to the estate; andc.That the costs of the application be awarded to the applicants.

2. The application is premised on the grounds therein and the supporting affidavit of Ali Chuba.

3. In the said affidavit the deponent stated that this honourable court delivered a ruling on the distribution of the late Chuba Bakari Hamisi's estate to the beneficiaries but failed to include the biological mother of the late Shaurigy Chuba Bakari as a beneficiary. It was urged that the mother of the said deceased person is a dependant under the law and that she was entitled to inherit from the estate of her late son. That failure by the court to include the mother as beneficiary /heir to the estate of the late son has deprived her of the right to inherit, contrary to the law of succession act and Islamic law.

4. He further stated that this is an error apparent on the face of the record arising from the ruling delivered on 31st January 2022 that has necessitated this application. He urged the court to review and or set aside the ruling and declare the mother of the late Shaurigy Chuba Bakari as heir/beneficiary and make reasonable provisions for her.

5. In response, the respondents filed a replying affidavit sworn on 21st September 2023 by JN.

6. Ms N stated that the application was filed late and is only aimed at frustrating the execution process since the respondents have not complied with the orders issued on 31st January 2022 by Mr Justice J.N Onyiego.

7. She further stated that they advertised the orders of the court on 18th June 2020 and nobody came out to claim any share of the estate of the late Swaurigy Chuba Bakari. However, on 26th April 2021, the respondent’s advocate informed the court that the mother of the late Swaurigy Chuba Bakari was claiming a share in the estate; however, no application was filed in support of the same.

8. She stated that the applicants have no locus standi to pursue any alleged interest of Josephine Mkande. Their grandmother obtained her share in the estate of the late Chuba Bakari, which was not being maintained by the late Swaurigy before his demise. It is only where the deceased has left no children that the mother automatically becomes a beneficiary.

9. She stated that her children have suffered due to the applicants’ non-compliance with court orders, including having the daughter drop out of school, and thus, litigation must come to an end.

10. The deponent deposed that the applicants have not preferred an appeal against the orders of 31st January 2022 and urged the court to dismiss the application herein.

11. The court directed that the matter be disposed of by way of written submissions. Subsequently, the applicants, through their advocates Khatib & Company Advocates, filed their written submissions dated 15th August 2023.

12. Counsel submitted on one issue whether this honourable court can review, vary and or set aside the ruling delivered on 31st January 2022 and include the biological mother to the late Shaurigy Chuba Bakari as a beneficiary /heir to the estate.

13. Counsel relied on Section 29(b) of the Law of Succession Act and submitted that pursuant to the ruling of 31st January 2022, the children of the late Shaurigy were granted 9. 21% of their father’s estate. However, the court failed to include/declare the mother to the late Shaurigy Chuba, Asha Chuba a beneficiary of her son’s estate. This, it was submitted, was an error apparent on the face of the record on the part of the court, as the mother of the late Shaurigy was entitled to inherit the estate of her late son under the stated provision. Thus, the same ought to be corrected.

14. Counsel further relied on order 45 rule 2(1) of the Civil Procedure Rules and submitted that this court has jurisdiction to review its ruling and include the mother of the late Shaurigy Chuba Bakari to inherit from her late son’s estate as a dependant. That the error on the part of the court in its ruling is self-evident and does not require an elaborate argument to be established.

15. In conclusion, counsel urged the court to grant the orders sought in the application, as prayed.

16. The respondents, on the other hand, through their advocates Mutisya Mwanzia & Ondeng Advocates, filed written submissions dated 21st September 2023. Counsel submitted on two issues namely; whether the notice of motion dated 18th july,2023 is merited and whether the respondents have complied with the orders issued on 31st January 2022.

17. On the first issue, counsel relied on Section 29 and 3(2) of the Law of Succession Act and submitted that the respondents herein are the children of the late Swaurigy Chuba Bakari and Josephine Wanjiru Njuki and were entitled to a 9. 21% share from the estate of the late Chuba Bakari Hamisi on behalf of their deceased father. Under Section 39 of the Law of Succession Act, the grandmother would only be a beneficiary if their father had left no children. To sustain her claim under Section 29 of the Act, she has to prove that she was being maintained by the deceased immediately prior to his demise. It was averred that she was not being maintained by their father and thus was not entitled to any share from his estate.

18. On the second issue counsel submitted that the applicants have not complied with court orders of 31st January 2023 and urged the court to find so. Counsel also urged the court to find that the application has no merit and dismiss the same.

19. I have considered the application, the response and the rival submissions by both counsels. This Court is called upon to decide whether the orders of 31st January 2022 should be reviewed to include the biological mother of the late Shaurigy Bakari Chuba as a beneficiary of his estate.

20. A reviewiew of the orders of the Court is provided for under Order 45 Rule 1 of the Civil Procedure Rules, 2010, which provides that:-1. Any person considering himself aggrieved—a.by a decree or order from which an appeal is allowed but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed,and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.2. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant or when, being respondent, he can present to the appellate court the case on which he applies for the review.

21. In this case, the applicants have argued that there is an error apparent on the face of the record on the part of this honourable court as it failed to include and or declare the mother to the late Swaurigy Chuba a beneficiary of her son’s estate in its ruling of 31st January 2022.

22. The applicants/ respondents moved this court vide an application dated 11th March 2015 seeking a determination of the late Swaurigy’s share of the late Chuba Bakari Hamisi(Deceased) and an injunction restraining the administrators from distributing or alienating the said share. Hon. Lady Justice Thande's ruling of 15th December 2015 dismissed the said application. Being aggrieved by the said ruling, the applicants/respondents appealed against the same to the Court of Appeal. The Court of Appeal upheld the appeal in its judgement of 26th September 2019, thereby holding that the applicants being non-Muslims, were wrongly subjected to the Kadhi’s Court jurisdiction as they did not submit to the same and that it was the high court that was seized of jurisdiction to hear and determine the dispute under the Law of Succession Act. The Court of Appeal directed the High Court to hear the matter under the Law of Succession Act and make a determination on any dispute that was pending or due to arise.

23. The matter was placed before Hon. Lady Justice Thande who recused herself. The file was then placed before Judge PJ Otieno, who directed an advertisement in the Daily Nation of the proceedings limited to the share of Swaurigy. The administrators were directed to file an affidavit within 30 days showing what they were holding on account of the late Swaurigy’s. The matter proceeded by way of viva voce evidence. As a result, this honourable court delivered its ruling dated 31st January 2022.

24. In his ruling, Mr. Justice Onyiego declared the applicants/respondents herein children of the late Shaurigy Chuba Bakari and, therefore, entitled to inherit the 9. 21% share due to their father from the estate of his father Chuba Bakari Hamisi. The applicants/respondents are entitled to their father’s share of 9. 21% of the estate of the late Chuba Bakari Hamisi. That the applicants are entitled to their father’s share (9. 21%) in equal share. The share of the second applicant/respondent herein, Charles, who is a minor shall be transferred and registered in the name of his mother, Josephine Wanjiru Njuki, to hold in trust for the benefit of the said minor until he attains the age of majority. The court further directed the administrators to transfer forthwith the said shares. Where it is not physically possible for any property to be so divided amongst all entitled beneficiaries, the same shall be valued by a mutually agreed valuer and then sold in a public auction. The proceeds realized therefrom be shared amongst the beneficiaries as ordered above. The applicants are entitled to the estate of Chuba Bakari Hamisi in respect of the following properties valued at Kes.176,100,000/- and identified as follows; Plot No.1763/MN/III, Plot No.1756 MN/III, Plot No.388,389,390 and 391 MN/III, land and House Plot No.1059 and 3287 MN/III, Plot No. Kilifi /Mtwapa 376 and house without land on Plots Nos. 807, 2888 and 535/III.

25. Upon perusal of the court records and reading of the ruling by Justice J. N Onyiego it is evident that the inclusion and or declaration of the biological mother to the late Swaurigy Chuba Bakari was not raised neither was it the subject of determination in the ruling of 31st January 2022.

26. The Court of Appeal in the case of National Bank of Kenya Ltd v Njau (1995-98) 2 EA249 held thus:-“A review may be granted wherever the Court considers that it is necessary to correct an apparent error or omission on the part of the Court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of the law. Misconstruing a statute or other provision of law cannot be a ground for review.In the instant case, the matters in dispute had been fully canvassed before the Learned Judge who made a conscious decision on the matters in controversy and exercised his discretion in favour of the Respondent. If he had reached a wrong conclusion of the law, it could be a good ground for appeal but not review. An issue hotly contested cannot be reviewed by the same court which had adjudicated upon it.”

27. From the case law above, it is clear an error or omission must be self-evident and should not require an elaborate argument to be established. Thus it is my finding that the issue of inclusion or declaration of the biological mother of the late Swaurigy Chuba Bakari as a beneficiary or dependant of his estate is not an error apparent on the face of the record but a substantial issue that goes to the root of the matter and that can only be determined through an elaborate argument. I am also guided by the case of In re Estate of Simoto Omwenje Isaka (Deceased) [2020] eKLR where the court stated:-“From the above, it is clear that the error the subject of the application ought to be so glaring that there can possibly be no debate about it. An error which has to be established by a long-drawn-out process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.”

28. It is clear that I have not found merit in the application. The same is dismissed with no orders as to costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 3RD DAY OF NOVEMBER 2023 VIA MICROSOFT TEAMS.GREGORY MUTAIJUDGEIn the presence of:-Ms. Gatimu for the Respondent/ApplicantMs. Mohamed holding brief for Mr. Khatib for the Respondent