[2013] KEHC 1100 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

SUCCESSION CAUSE NO. 236 OF 1994

IN THE MATTER OF THE ESTATE OF PETRO KARIUKI WACHIRA (DECEASED)

GEOFFREY MBURU ALIASLAWRENCE KARIUKI KARANJA..............APPLICANT

VERSUS

LAWRENCE KAGAI KARIUKI

LUCY WANJIRU NJOROGE

STEPHEN RAGUI.........................................................................RESPONDENTS

RULING

1. By a Chamber Summons dated 22nd April 2013 and brought under rules 49, 63 and 73 of the Probate and Administration Rules and Order 45 rules 1 and 2 of the Civil Procedure Rules, the Applicant sought the following orders:

that the application be certified urgent and the same be heard ex-parte in the first instance,

(2) that pending the hearing and determination of the application, inter partes there be a stay of execution of the Ruling herein plus all its consequential orders,

that the Honourable Court be pleased to review, set aside or vacate its orders of 8th February 2013 in respect of the application dated 6th June 2012,

that the costs of this application be provided for.

2. The summons is supported by the affidavit of the Applicant sworn on 22nd April 2013 and is premised on the following grounds:

(1) that there has been discovery of new and important matters or evidence which, after the exercise of due diligence could not be produced by the Applicant at the time when the order was made,

(2) that there is an apparent error on the face of the record which error constitutes sufficient reason to warrant the review of the order,

(3) that the application has been brought promptly upon discovery of the new material and without undue delay,

(4) that the applicant stands to suffer grave and irreparable loss unless the orders sought are granted.

3. In opposition thereto the Respondents herein raised a Preliminary Objection dated 8th May 2013 on the grounds that the entire application is an abuse of the court process as the evidence sought to be reintroduced was before the court and the application is a disguised appeal. They also relied on the Replying Affidavit of Lawrence Kagai Kariuki the First Respondent sworn on 10th May 2013. The application was canvassed by way of written submissions, the Applicant's submissions are dated 25th July 2013 and were filed on the same day while those of the Respondents' are dated 23rd July 2013 and were filed on 24th July 2013.

4. The orders which the applicant herein seeks to review were made on 8th February 2013 in relation to an application dated 6th June 2012. In that application, Lawrence Kagai Kariuki one of the Executors of the Will of the deceased and the First Respondent herein alleged that there was an error that occurred during the surveying of the deceased's property known as Manyatta A 1286, which was later subdivided into Manyatta A 4396, 4397, 4398 and 4399 which resulted into unequal subdivision of the property. He therefore sought a resurvey of the same in order to ascertain the true boundaries of the subdivisions. That upon a resurvey being conducted the parties be ordered to surrender their title deeds in respect of the suit property to the District Land Registrar Kisumu for cancellation and in default then the court does order the Registrar to cancel the said titles and rectify the register by issuing new titles reflecting the dimensions of the newly subdivided plots.

5. The Applicant herein opposed the said application on the grounds inter alia, that all the beneficiaries had agreed that the deceased's property including the suit land would be divided equally among the brothers. After subdivision of the Plot No. Manyatta A 4397 emerged to be slightly larger, but the beneficiaries agreed that the Applicant would keep the same. The court after hearing all the parties ordered a resurvey of all the plots mutated from Plot No. 1286 (plot Nos. Manyatta A 4396-4399) by a licensed surveyor to be jointly appointed by the parties who shall thereafter file a report in court within 90 days of the order showing adjustments of the area of each plot. In the alternative, the Applicants (Respondents herein) and the Respondent (Applicant herein) shall appoint a registered valuer to value all the large plots and file a report within 90 days with the alternative orders that the Respondent shall compensate the Applicants for the extra area occupied by the plot he occupies or that he claims to be his.

6. The applicant now seeks review of the above orders claiming that at the time of making the Ruling, the court was not aware that the parties herein had taken into consideration the subdivision of the other deceased's properties and in particular plots Nos. Manyatta 468 and 536 in arriving at the mutation of the suit plot. He annexed to his application an Agreement dated 2nd June 2003 wherein it was agreed that he would get a larger share out of the subdivision of the suit property on condition that he forfeited part of his claim to the rest of the deceased's properties. According to him this resulted in an error on the face of the record.

7. The Respondents alleged that there was no discovery of any new and important matter as the tentative agreement was before court when it made the orders now sought to be reviewed, that the application herein is disguised as an appeal and in addition, the said agreement was tentative and was not intended to alter the wishes of the deceased or the Will.

8. The court is empowered under Order 45 to review its decrees and orders. The said Order provides-

1. (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; or

(b) 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.

9. This power is exercised where the aggrieved party has discovered new and important 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.

10. The Applicant herein alleges that the court was not aware of the agreement dated 2nd June 2003 where the parties agreed on the mode of sub division and distribution of the deceased's properties. However it is incumbent upon a party for or in opposition to an application to submit before court all evidence and facts within his knowledge to enable the court to make an informed finding. Where he fails to do so and is aggrieved by the orders made by the court it is not open to him to seek review of the orders by submitting fresh material. Indeed Order 45 has a proviso that an order of review shall not be granted on the ground of discovery of new matter or evidence which the Applicant alleges was not within his knowledge or could not be adduced by him at the time when the decree was passed without strict proof of such allegation. Thus review is to be granted if the new evidence was not within the knowledge of the party not the court.

11. In the instant application, the terms of the said agreement were well within the knowledge of the Applicant at the time when the application dated 6th June 2012 was canvassed. In addition, its existence was brought to the attention of the court as the same was annexed to the Applicant's Replying affidavit in opposition to the said application. It is therefore not new or fresh evidence as it contents were considered by the court and informed its decision allowing resurvey of the suit premises.

12. If the Applicant is of the view that the court failed to consider the contents of the agreement as a result of which he was aggrieved, then he should appeal. In the case of Njoroge & 4 Others (Suing in representative capacity for Kariobangi South Civil Servants Estate Tenant Purchasers) vs. Savings & Loan Kenya Ltd & Another[1990] KLR 78 the court cited, with approval, the holding of Bennet, J in the Ugandan case of Balinda vs. Kagwamy & Another[1963] EA 557at page 558 that -

“Order 42 rule 1 of the Uganda Civil Procedure Rules is identical with Order 47 rule 1 of the Indian Civil Procedure Rules (and identical with our Order 44 rule 1). In IAR commentaries on the Code of Civil Procedure by Chitaley and Rao (4th edn)Vol 3 page 3225 the learned authors in explaining the distinction between a review and an appeal have this to say-

“A point which may be a good ground of appeal may not be a ground for an application for review. Thus an erroneous view for evidence or law is no ground for a review though it may be a good ground for an appeal.”

13. Similarly in G.M Jivanji vs. M. Jivanji & Another[1929-30) KLR 44the court held thus on the scope of an application for review:-

“...but in my opinion, however aggrieved a person may be at the various expressions contained in a judgment or even at various rulings embodied therein, unless that person is aggrieved at the formal decree or the formal order based upon the judgment as a whole, that person cannot under Order XLII appear before the judge who passed the judgment and argue whether this or that in the judgment is tenable or untenable. The ratio decidendi expressed in the judgment cannot be called under question in review unless the resultant decree is a source of legitimate grievance to a party.”

14. Therefore the court cannot during the hearing of an application for review revisit the evidence already submitted or consider grounds that have already been adduced or ought to be adduced but were not due to the negligence of the parties. Consequently any prejudice that will be suffered by the Applicant if a resurvey was to be done were matters that should have been determined and were determined by the court at the time it heard the application dated 6th June 2012 and they cannot form the basis of reviewing the resultant orders.

15. The Respondents raised a new ground in the submissions that the application is fatally defective as the orders sought to be reviewed were not annexed to the application. In support of this submission, they relied on the case of Chhaganlan Odhavju Vishram Vadgama vs. Travis (EA) Ltd. Nairobi HCCC No. 1908 of 2000 (O.S).

16. I am unable to determine this ground because firstly, it was not raised in the preliminary objection nor in the Replying Affidavit but only introduced in the Respondent's submissions. Therefore the Applicant herein was not given a chance to respond to the same and it would be unjust to dismiss the application on such a ground. However even it it had been argued inter partes, it is my view that such an omission is a mere procedural technicality which does not go to the root of the application or the matters in issue. Firstly there is a copy of the said order in the court record and secondly the Respondents herein have not alleged that the contents of the orders are not within their knowledge. Thus there is no injustice that has been occasioned by this omission. In my view therefore this ground has no merit and I would determine the application on substance.

17. In conclusion, I find that the application herein has no merit and the Applicant has failed to establish sufficient reasons to enable this court review its orders made on 8th February 2013.

18. The application is therefore dismissed with costs to the Respondents.

It is so ordered.

Dated, signed and delivered at Nakuru this 7th day of November, 2013

M. J. ANYARA EMUKULE

JUDGE