[2022] KEHC 3223 (KLR)

In re Estate of Beatrice Wairimu Ngara ( Deceased) (Succession Cause 889 of 2015) [2022] KEHC 3223 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3223 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 889 of 2015

FN Muchemi, J

May 5, 2022

In the matter of the estate of Beatrice Wairimu Ngara ( Deceased)

Between

John Gikonyo Ngara

Petitioner

and

Mary Wambui Njagi

Respondent

Ruling

Brief facts 1. This is a ruling on the Summons General dated June 17, 2020seeking for orders for review of the ruling of this court delivered on January 28, 2020and dated January 13, 2020on grounds that there was an error apparent on the face of the record as to the acreage of the land to be distributed to the parties namely L.R. Thegenge/Karia/773 and 779.

2. The respondent said he opposed the application in his replying affidavit dated December 8, 2020 and in a further affidavit dated January 25, 2022and filed on January 27, 2022. However, the replying affidavit was not traced in the court file nor in the copy of record of appeal filed together with the further affidavit.

3. The law relating to this application is contained in Rule 63 of the Probate and Administration Rules, which provides as follows:-Save as in the Act or in these Rules otherwise provide, ad subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (Cap 21, Sub. Leg) together with the High Court (Practice and Procedure) Rules (Cap 8, Sub Leg.) shall apply so far as relevant to proceedings under these Rules.

4. Order 45 of the Civil Procedure Code sets out the parameters for an application for review as follows:-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 order made 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 which he applies for the review.

5. Order 45 provides for three circumstances under which an order for review can be made. The applicant must demonstrate to the court that there has been 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. Secondly, the applicant must demonstrate to the court that there has some mistake or error apparent on the face of the record. The third ground for review is worded broadly; an application for review can be made for any other sufficient reason.

6. The respondent relied on the cases of Newmont Yandal Operations Pty Ltd vs The J. Aron Corp & The Goldman Sachs Group Inc [2007] 70 NSWLR 411 and Lakhamshi Brothers Ltd vs R. Raja & Sons [1966] EA 313 where the courts held that they have inherent jurisdiction to correct errors when they entered judgment where the orders given did not represent the intentions of the court.

7. The applicant argued that the ruling of Matheka J was evident that the distribution was based on the actual size of the land L.R No.s Thegenge/Karia/773 and 779 that measures 7. 4 acres. The judge gave Teresa Nyang’endo Ndiritu 1. 0 acre, Tabitha Wangui Kariuki 1. 0 acre, Robert Ngara Gikonyo 2. 5 acres and proceeded to state that the balance of the land was to go to John Gikonyo Ngara. However, the court indicated in its judgement that John Gikonyo Ngara would get 3. 9 acres which was bigger than the portion left after distribution to the other beneficiaries. The actual balance was 2. 9 acres and not 3. 9 acres and thus the error that the applicant seeks to be corrected.

8. The respondent has already filed an appeal in the Court of Appeal and argues that if the correction sought is done, it is going to prejudice him in the appeal. It is noted that there are no orders for stay of proceedings in this file. The respondent has not served any orders of stay of proceedings in this cause from the Court of Appeal. As such, if this court finds that there is any error apparent in the judgement, then it has powers to grant the orders sought. In my view such orders will not prejudice the respondent in that there will be no change in the judgment as regards the distribution made by the honourable judge on 13/01/2020.

9. Furthermore, the Court of Appeal in determining the appeal will look at the judgement of Matheka J as well as this ruling that may contain the correction of the acreage, should this application be successful. I repeat that the respondent will not be prejudiced in any way.

10. I have perused the judgement of Matheka J, page 12 it reads:-27. The petitioner’s sister has renounced her entitlement. That leaves three (3) siblings to share the 7. 4 acres that make up 773 and 779. The other sisters have not during these proceedings raised any objections to their taking one acre each. In the circumstances, each of them can have their one acre each, then Robert Ngara Gikonyo 2. 5 acres and the petitioner the balance of 3. 9 acres.

28. The protest succeeds in the following terms:-That the deceased estate made up of L.R. Thegenge/Karia/773 and 779 be distributed as follows:-a)John Gikonyo Ngara 3. 9 acresb)Robert Ngara Gikonyo 2. 5 acresc)Teresa Nyang’endo Ndiritu 1. 0 acresd)Tabitha Wangui Kariuki 1. 0 acres

11. I have also looked at the certificates of official search that show the sizes of the two parcels of land as follows:-a)L.R. Thegenge/Karia/773 measures 1. 74 ha (equivalent to 4. 29 acres)b)L.R. Thegenge/Karia/779 measures 1. 22 ha (equivalent to 3. 01 acres)

12. The total acreage for the two parcels is 7. 30 acres. As such, the acreage available for the 4th beneficiary John Gikonyo Ngara is 2. 80 acres and not even 2. 9 acres. Paragraphs 27 and 28 of the judgment cited herein are very clear in the distribution of the estate as the court intended save for the acreage.

13. I find the application dated 17/06/2020 merited and I allow it in the following terms:-a)That the judgment of Matheka J is hereby reviewed for paragraph 27 and 28 to read 2. 80 acres in regard to the share of John Gikonyo Ngara.b)That each party will meet its costs for this application.

14. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 5TH DAY OF MAY, 2022. F. MUCHEMIJUDGERULING DELIVERED THROUGH VIDEOLINK THIS 5THDAY OF MAY, 2022.