[2019] KEHC 5376 (KLR)
The court found that the applicant had discovered a property belonging to the deceased that was not included in the confirmed grant. This discovery constitutes new and important evidence that was not within the applicant's knowledge at the time the grant was confirmed. The court held that review is available in...
Source-derived case information.
- Citation
- [2019] KEHC 5376 (KLR)
- Parties
- Applicant: Jeremiah Kamau Njoroge
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 312 of 2014
- Procedural Posture
- Succession Cause / Application for Review of Confirmed Grant
- Outcome
- application allowed
- Judges
- LW Gitari
- Legal Topics
- Review of Grant, Discovery of New Evidence, Probate and Administration, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Kamau Njoroge
Applicant
Procedural Posture
Succession Cause / Application for Review of Confirmed Grant
Legal Issues
- 1 Whether the applicant has met the threshold for review of the confirmed grant based on discovery of new and important evidence.
- 2 Whether the omitted property, Lock-up-2-Kimbimbi, should be included in the schedule of the deceased's estate.
Ratio Decidendi
The court found that the applicant had discovered a property belonging to the deceased that was not included in the confirmed grant. This discovery constitutes new and important evidence that was not within the applicant's knowledge at the time the grant was confirmed. The court held that review is available in succession matters under the Civil Procedure Act and Rules, and that it is expedient and just to include the omitted property in the grant. Consequently, the court allowed the application for review, set aside the previous confirmation, and ordered the issuance of a fresh grant including the omitted property.
Court Disposition
application allowed
Orders
- The grant confirmed on 9/11/2013 is reviewed and set aside.
- A fresh grant shall be issued to include Lock-up-2-Kimbimbi in the schedule of the deceased's properties.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERUGOYA
SUCCESSION CAUSE NO. 312 OF 2014
IN THE MATTER OF THE ESTATE OF THE LATE EMILY NDUTA NJOROGE(Deceased)
JEREMIAH KAMAU NJOROGE..................................APPLICANT/PETITIONER
RULING
1. This matter relates to the estate of Emily Nduta Njoroge, deceased.
2. The applicant has filed an application dated 30/11/2018 seeking review of the confirmation of grant issued on 09/11/2013. That after confirmation, he discovered that one property was erroneously left out being LOCK-UP 2 KIMBIMBI. He proposed that the whole share of the same be given to Sarah Wairimu Mwangi. That the other properties remain as distributed earlier.
The application is not opposed.
Grounds for applying for review
Review can only be allowed under certain circumstances. It is not in all cases that a party is allowed to apply for review. The grounds are:
i)Discovery of new and important matter of evidence which, after 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
ii)Mistake or error apparent on the face of the record
iii)Any other sufficient reason which may make the court to review its order.
Application for review of decree or order is made under Section 80 Civil Procedure Act and Order 45 Civil procedureRules. Order 45 rule 1 Civil Procedure Rules provides:-
3. This is being discovery of new and important matter of evidence that was not within the knowledge of the applicant at the time of making the orders, the application for review can be considered.
4. Review is available in succession matters as it is one of the orders in the Civil Procedure Act which is applicable.
Rule 63 of the Probate & Administration Rules provides:-
“Save as is in the Act or in these Rules otherwise provided, and 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, together with the High Court (Practice and Procedure) Rules, shall apply so far as relevant to proceedings under these Rules.”
Order XL IVis now Order 45in the Civil Procedure Rules 2010.
5. The court will order review where a party has after the order was issued discovered new or important matter or evidence or mistake or error apparent on the face of the record or for any other sufficient reason. The discovery must be an issue of fact or evidence. The applicant claims that he has since discovered property of the deceased which was not included in the grant. This is a matter of evidence and since this matter relates to the estate of the deceased it would be expedient to include the property in the grant of administration of her estate. The application has merits. I allow it as prayed.
6. The grant confirmed on 9/11/2013 is reviewed and set aside. A fresh grant be issued to include Lock-up-2-Kimbimbi on the schedule of the properties of the deceased.
Dated at Kerugoya this 18th day of July 2019.
L. W. GITARI
JUDGE