[2020] KEHC 3025 (KLR)
The court found that the applicant's claim of discovery of a forged form P & A. 5 was unsubstantiated, as the impugned document was her own and had been filed alongside other documents, including a chief's letter that listed the interested parties as purchasers. The applicant had included the interested parties in...
Source-derived case information.
- Citation
- [2020] KEHC 3025 (KLR)
- Parties
- Applicant: Caroline Atieno Ondewe; Respondent: Wilfred Odwori Kefa; Respondent: Antony Pilly Muliro; Respondent: Christopher Ndungu; Respondent: Desterio Ngayi Oduori
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 122 of 2011
- Procedural Posture
- Probate and Administration Application / Ruling on Application for Review of Orders
- Outcome
- application dismissed with costs
- Judges
- KW Kiarie
- Legal Topics
- Review of Court Orders, Probate and Administration, Forgery Allegations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caroline Atieno Ondewe
Applicant
Wilfred Odwori Kefa
Respondent
Antony Pilly Muliro
Respondent
Christopher Ndungu
Respondent
Desterio Ngayi Oduori
Respondent
Procedural Posture
Probate and Administration Application / Ruling on Application for Review of Orders
Legal Issues
- 1 Whether the applicant has established sufficient grounds for review of the orders issued on 10th December 2019.
- 2 Whether the discovery of an allegedly forged form P & A. 5 constitutes new and important evidence warranting review.
- 3 Whether the applicant failed to include interested parties in the original petition for letters of administration.
Ratio Decidendi
The court found that the applicant's claim of discovery of a forged form P & A. 5 was unsubstantiated, as the impugned document was her own and had been filed alongside other documents, including a chief's letter that listed the interested parties as purchasers. The applicant had included the interested parties in the liability section of the form P & A. 5. The court noted that the applicant's argument would only have merit if she was contending that she was not the one who filed the succession cause, which was not the case. Consequently, the court held that the application did not meet the threshold for review under Order 45 of the Civil Procedure Rules and dismissed the application with...
Court Disposition
application dismissed with costs
Orders
- The application for review is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINSTRATION NO. 122 OF 2011
IN THE MATTER OF THE ESTATE OF:
CLEOPHAS MARK ONDEWE MUGWANG’A..................................DECEASED
BETWEEN
CAROLINE ATIENO ONDEWE..............................PETITIONER/ APPLICANT
AND
1. WILFRED ODWORI KEFA
2. ANTONY PILLY MULIRO
3. CHRISTOPHER NDUNGU
4. DESTERIO NGAYI ODUORI....INTERESTED PARTIES/RESPONDENTS
RULING
1. The petitioner/applicant herein moved the court by way of Notice of Motion dated 19th December 2019 under Order 45 Rule1 & 2 of the Civil Procedure Rules Rule 73 Probate and Administration Rules. She is seeking for a review of the orders issued on 10th December 2019.
2. The application is premised on the following grounds:
a) That the court relied on a document that was not signed by the petitioner.
b) That the affidavit in support of the petition for the letters of administration was not signed by the petitioner.
c) That the petitioner while applying for the letters of administration did not include the interested parties.
d) That there are sufficient grounds to review the orders issued on 10th December 2019.
3. The application was opposed on the following grounds:
a) That there was no way the file could have been signed without form P & A. 5.
b) That the applicant has not produced another form P & A. 5 to challenge the one on record.
4. Order 45 of the Civil Procedure Rules provides as follows in Rues 1& 2:
Application for review of decree or order [Order 45, rule 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.
(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.
2. To whom applications for review may be made [Order 45, rule 2. ]
(1) An application for review of a decree or order of a court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree, or made the order sought to be reviewed.
(2) If the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to that court at the time the application comes for hearing.
(3) If the judge who passed the decree or made the order is still attached to the court but is precluded by absence or other cause for a period of 3 months next after the application for review is lodged, the application may be heard by such other judge as the Chief Justice may designate.
5. The applicant is saying that she has made the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within her knowledge at the time when the decree was passed or the order made. This, she alleges is the discovery of a forged form P & A. 5 on record.
6. I have perused the submissions by both parties and the record, the following facts emerge:
a) That the impugned form P. &A. 5 was her own document which she had filed alongside other documents notably the chief’s letter which included the interested parties as purchasers. In the form P. &A. 5 she had included them in the liability section.
b) Her argument could have made sense if she was contending that she was not the one who filed this succession cause.
7. The application is devoid of merits and the same is dismissed with costs.
DELIVEREDandSIGNEDatBUSIAthis30th dayof September, 2020
KIARIE WAWERU KIARIE
JUDGE