[2019] KEHC 11031 (KLR)
The court found that the omission to distribute the deceased's residence was an inadvertent error apparent on the face of the record. The applicant had demonstrated sufficient grounds for review under Order 45 rule 1(1) of the Civil Procedure Rules. The court allowed the application, reviewed the judgment to include...
Source-derived case information.
- Citation
- [2019] KEHC 11031 (KLR)
- Parties
- Applicant: Purity Wambui Gachimbi; Respondent: Beatrice Ngonyo Mwathi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2277 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Review of Judgment
- Outcome
- Application for review allowed. Judgment reviewed to include distribution of the deceased's residence.
- Judges
- AO Muchelule, A Ali-Aroni
- Legal Topics
- Succession, Estate Distribution, Review of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Purity Wambui Gachimbi
Applicant
Beatrice Ngonyo Mwathi
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the omission to distribute the deceased's residence constituted an error apparent on the face of the record warranting review of the judgment.
- 2 Whether the applicant is entitled to have the property distributed among the children of the deceased.
Ratio Decidendi
The court found that the omission to distribute the deceased's residence was an inadvertent error apparent on the face of the record. The applicant had demonstrated sufficient grounds for review under Order 45 rule 1(1) of the Civil Procedure Rules. The court allowed the application, reviewed the judgment to include the residence at Nikanini Farm (Plot No. 23, LR No. 19959/21) in the estate, and ordered that it be registered in the joint names of Purity Wambui Gachimbi and Beatrice Ngonyo Mwathi to hold in trust for Purity Wambui Gachimbi, Karin Muthoni Gachimbi, and Angela Amani Gachimbi in equal shares. The certificate of confirmation was to be amended accordingly.
Court Disposition
Application for review allowed. Judgment reviewed to include distribution of the deceased's residence.
Orders
- The judgment delivered on 30th January 2017 is reviewed to include the residence at Nikanini Farm (Plot No. 23, LR No. 19959/21) in the estate.
- The property shall be registered in the joint names of Purity Wambui Gachimbi and Beatrice Ngonyo Mwathi to hold in trust for Purity Wambui Gachimbi, Karin Muthoni Gachimbi, and Angela Amani Gachimbi in equal shares.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 2277 OF 2011
IN THE MATTER OF THE ESTATE OF CECILIA WANGECI MWATHI (DECEASED)
PURITY WAMBUI GACHIMBI...............1ST PETITIONER/APPLICANT
VERSUS
BEATRICE NGONYO MWATHI........2ND PETITIONER/RESPONDENT
RULING
1. An applicant who seeks a review of a judgment or order has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the judgment or order to be reviewed was made, or has to show that there was mistake or error apparent on the face of the record, or that there is other sufficient reason that should entitle him to the review (Order 45 rule 1(1) of the Civil Procedure Rules; Tokesi Mambili and Others –v- Simion Litsanga, Civil Appeal No. 90 of 2001 at Kisumu).The application should be brought without unreasonable delay.
2. On 30th January 2017 I gave a judgment in which I distributed the estate of the deceased Cecilia Wangeci Mwathi to the beneficiaries. One of the beneficiaries was Purity Wambui Gachimbi who was an administratrix of the estate. On 25th October 2018 she filed the present application to have the judgment reviewed. Her case was that the deceased’s residence was at Nikanini Farm (Plot No. 23, a portion of LR No. 19959/21) which was one of her properties, and that the property was acknowledged in the judgment but that it had not been distributed. She asked the court to find that the omission to distribute the estate was an error apparent on the face of the record which should be corrected by review. It was her request that the property be equally shared among the children of the deceased (Purity Wambui Gachimbi, Karin Muthoni Gachimbi and Angela Amani Gachimbi) and be registered in the joint names of Purity Wambui Gachimbi, Karin Muthoni Gachimbi and Beatrice Ngonyo Mwathi to hold in trust for the children.
3. The application was served on the firm of C.K. Chege & Co. Advocates for the respondent Beatrice Ngonyo Mwathi who was the co-administratrix. There was no response.
4. It is notable that the applicant, Karin Muthoni Gachimbi and Angela Amani Gachimbi were children of the deceased, and the respondent was the deceased’s mother.
5. I acknowledge that, out of inadvertence, I did not distribute the deceased’s residence to her beneficiaries. I, consequently, allow the application. I review the judgment delivered on 30th January 2017 by including in the estate the residence at Nikanini Farm (Plot No. 23, apartment on LR No. 19959/21) which shall be registered in the joint names of Purity Wambui Gachimbi and Beatrice Ngonyo Mwathi to hold in trust for Purity Wambui Gachimbi, Karin Muthoni Gachimbi and Angela Amani Gachimbi in equal shares.
6. The certificate of confirmation issued on 30th January 2017 shall be amended to include the foregoing distribution.
DATED and SIGNED at NAIROBI this 5TH day of FEBRUARY 2019.
A.O. MUCHELULE
JUDGE
DATED and DELIVERED at NAIROBI this 11TH day of FEBRUARY 2019.
ALI-ARONI
JUDGE