[2022] KEHC 11511 (KLR)

In re Estate of Evantus Gikandi Maina (Deceased) (Succession Cause 516 of 2013) [2022] KEHC 11511 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11511 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 516 of 2013

FN Muchemi, J

May 19, 2022

IN THE MATTER OF THE ESTATE OF EVANTUS GIKANDI MAINA (DECEASED)

Between

Mariam Waithera

Administrator

and

Rose Wangari Maina

1st Respondent

Ruth Wangari Muriithi

2nd Respondent

and

James Macharia Wachira

Interested Party

Samuel Lord Kairu Gacheru

Interested Party

Ruling

Brief facts 1. The application dated 30th August 2021 is brought under Rule 73 of the Probate and Administration Rules seeks for orders of review of this court’s ruling delivered on 15th July 2021. The court held that the assets already distributed in Succession Cause No. 270 of 2021 shall not form part of this cause and that any shares in limited liability companies herein should be dealt with in accordance with the relevant law. This application then seeks the following orders:-a)That the share of the assets due to the deceased herein as per the confirmed grant in Nyeri High Court P & A 270 of 2002 constitute part of the estate herein thus they do form part of assets for distribution hereinb)That the shares held by the deceased herein in the limited liability companies (enlisted in paragraph 5 of the said ruling of 15th July 2021 or in any other limited liability company) do constitute part of the estate herein assets thus due for distribution in the subject matter.

2. In opposition to the application, the 1st respondent has filed a Replying Affidavit dated 11th November 2021.

3. The applicant in response to the replying affidavit put in a Supplementary Affidavit dated 2nd February 2022.

The Applicant’s case 4. It is the applicant’s case that there is an error apparent on the face of the record as the court in its ruling delivered on 15th July 2021 determined that some assets listed in Succession Cause No. 270 of 2002 were distributed and the 1st respondent was the sole beneficiary. The applicant contends that the 1st respondent though the sole administrator in the said succession cause, was only holding the immovable assets in trust for herself and children, including the deceased herein. Consequently, the deceased herein is entitled to 1/8 share of all the assets listed in the grant and further due to the demise of the sole administrator, the trusteeship has ceased and each beneficiary is entitled to his or her own 1/8 share.

5. The applicant states that it thus follows that the inclusion of the assets due to the deceased herein in respect of Succession Cause No. 270 of 2002 was not an attempt to re-distribute the said assets or interfere with the said grant but to include the deceased’s 1/8 share as part of the estate herein.

6. The applicant further states that legally there is no other way that the beneficiaries can deal with the said 1/8 share unless the said assets are included as part of the assets herein. Consequently, the court should allow the inclusion of the said assets in the following terms ‘1/8 share of the deceased’s share of the assets due to him in Nyeri High Court Succession Cause No. 270 of 2002. ’

7. The applicant relies on the decision by the court of Appeal in the Matter of the Estate of Charles Karuga Koinange [2017] eKLR and states that the shares in the limited liability companies ought to be distributed in the succession cause herein and not as per the relevant law pursuant to the court’s directions. The court in its ruling, failed to appreciate that what was at stake were just shares but not any other disputes relating to management or control of the said companies. The applicant further states that if the deceased held shares in other listed and non-listed companies like Safaricom, the distribution of the said shares would be handled in the succession cause but not elsewhere.

8. Based on the foregoing, the applicant contends that there exists good reason to review its ruling to ensure that some of the assets are not left out. Moreover, the applicant states that the issues raised are not issues to be the subject of an appeal court but rather, the court can review its orders now that some issues that may have otherwise not been clear to the court have been explained with some clarity.

The 1st Respondent’s Case 9. The 1st respondent contends that the assets in Succession Cause No. 270 of 2002 were legally distributed and should not be part of this succession cause. Further the 1st respondent states that the shares in the limited liability companies listed ought to be dealt with in the Companies Act 2015 since the deceased died domiciled in Kenya. Further, the 1st respondent states that the applicant is misleading the court to believing that the shares held by the deceased in the said companies are similar as the deceased having shares in a company like Safaricom.

10. The 1st respondent further contends that an application for review is made when new evidence has been discovered which was not within the knowledge of the applicant or on account of some mistake or error apparent on the face of the record, which is not the case here. The 1st respondent states that this application seeks to delay this matter indefinitely as the applicant was granted most of the assets. The 1st respondent further contends that the application is frivolous, vexatious, bad in law and an abuse of the court process as the applicant has failed to raise any substantial grounds or reasons for the court to consider in determining this application. As such, in the interests of justice, the 1st respondent prays that the application be dismissed with costs.

11. The applicant filed a Supplementary Affidavit reiterating what she deponed in her affidavit and further states the role of an administrator is to identify and disclose to the court and the beneficiaries what is due to the estate of a deceased person and if the deceased’s share in his father’s estate in Succession Cause No. 270 of 2002 is not included in the list of assets, the estate will suffer great prejudice and loss as it will not be considered as part of the estate due for distribution in the subject cause. The applicant further reiterates that as for the shares in the limited liability companies, the issue is not about ownership or management of the limited liability companies but rather it is about undisputed shares.

12. Parties canvassed the application by way of written submissions. A summary of their rival submissions is as follows:-

The Applicant’s Submissions 13. The applicant relies on Order 45 of the Civil Procedure Rules and the case of in the Estate of Simoto Omwenje Isaka (Deceased) [2020] eKLR and states that there was an error or mistake in the court’s ruling dated 15th July 2021 which warrants a review. The applicant reiterates what she deponed in her affidavits and states that it is fair and just if an order is issued in the terms ‘1/8 share of the deceased’s share of assets due to him in Nyeri High Court Succession Cause No. 270 of 2002’ as failure to which will render some of the estate un-administered.

14. The applicant relies on the case of in the Matter of the Estate of Charles Karuga Koinange [2017] eKLR and submits that the shares in the limited liability companies ought to be distributed in the succession cause and not elsewhere. The applicant states that it is not asking the court to look into any other dispute relating to management and control of the said companies but purely only the issue of who will be the beneficiary under succession law of the said shares. The applicant submits that she has laid sufficient reasons to warrant a review of the orders issued on 15th July 2021 and prays that the application be allowed.

The 1st Respondent’s Submissions 15. The 1st respondent states that the summons has been brought under the wrong provisions of the law as Rule 73 of the Probate and Administration Rules is not applicable for orders of review. As such, the application is a nonstarter and the same ought to be struck out with costs.

16. The 1st respondent submits that the application ought to abide by Rule 63 of the Probate and Administration Rules. To support her contention, the 1st respondent relied on the case of John Mundia Njoroge & 9 Others vs Cecilia Muthoni Njoroge & Another [2016] eKLR and submits that the applicant has to satisfy the conditions set out in Order 45 of the Civil Procedure Rules in the case of a review. The 1st respondent further submits that although the applicant has sought for the orders of review on account of a mistake or error apparent on the face of the record, the applicant has not pointed out the mistake the court made in its ruling. To support her contention, the 1st respondent makes reference to the cases of Muyodi vs Industrial and Commercial Development Corporation & Another [2006] 1 EA 243 and Chandrakhant Joshibhai Patel vs R [2004] TLR, 218 and submits that an error on the face of the record should be apparent, manifest or self-evident and does not require an examination or argument to establish it. As such, the 1st respondent submits that there was no error apparent on the face of the record and the applicant has not brought any new evidence that she has discovered. Consequently, the applicant has not met the threshold for the orders of review. The 1st respondent therefore prays that the application be dismissed with costs.

The 2nd Respondent’s Submissions 17. The 2nd respondent submits that the mistake of the law as argued by the applicant can only be cured by way of an appeal and not be review as sought in the instant application.

18. The 2nd respondent further submits that the court cannot address issues concerning another estate that is not before it. The instant succession cause must deal with assets, liabilities and beneficiaries of the deceased. The 2nd respondent further contends that where there are assets that have not crystallized as the applicant seems to imply, there are provisions under the law to enable a legal representative to complete the process of transmission in the matter under review. Thereafter the court has power to deal with any un-administered assets that may be brought to the knowledge of the court.

19. The 2nd respondent submits that the provisions of the Company’s Act are not by passable as implied by the applicant. It is born of the ignorance of shares in a private company versus shares held in a public company especially quoted in the stock exchange. The 2nd respondent contends that although both are limited liability companies, the application would only make sense where the companies concerned are public limited companies whose shares are subject to transmission through succession proceedings.

Issue for determination 20. After careful analysis, the main issue for determination is whether the applicant has met the threshold for orders of review.

The Law Whether the applicant has met the threshold for the orders of review 21. Review of decisions of a probate court is governed by 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.

22. This principle was enunciated in the case of John Mundia Njoroge & 9 Others v Cecilia Muthoni Njoroge [2016] eKLR the court cited Rule 63 of the Probate and Administration Rules, and then stated as follows:-As stated above, the only provisions of the Civil Procedure Rules imported to the Law of Succession Act are orders dealing with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attending witnesses, affidavits, review and computation of time. Clearly, Order 45 relating to review is one of the Civil Procedure Rules imported into succession practice by Rule 63 of the Probate and Administration Rules. An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review as wet out in Order 45 of the Civil Procedure Rules.

23. 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.

24. It then follows that 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.

25. The applicant herein has grounded her application on an error or mistake apparent on the face of the record.

26. The question then begs as to what constitutes a mistake or error on the face of the record. In the case ofMuyodi vs Industrial and Commercial Development Corporation & Another [2006] 1 EA 243, the Court of Appeal considered what constitutes a mistake or error apparent on the face of the record, and stated as follows:-In Nyamogo & Nyamogo vs Kogo (2001) EA 174 this Court said that an error on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may be conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal.

27. Similarly in Paul Mwaniki v National Hospital Insurance Fund Board of Management [2020] eKLR the court stated:A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provisions of law cannot be a ground for review.

28. The court went on to say:-The term ‘mistake or error apparent’ by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for purposes of Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Act. Put it differently an order, decision, or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. The wisdom flowing from jurisprudence on this subject is that no error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish it.

29. Evidently, from the above, it is clear that the error if any, ought to be so glaring that there can possibly be no debate about it. An error which has to be established by a long drawn out process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. The applicant in the instant application states that the error apparent on the face of the record is in relation to the assets already distributed in Succession cause No. 270 of 2021 shall not form part of the instant succession and the fact that the shares in the limited liability companies should be dealt with in accordance with the relevant law. The applicant argues that the assets and the shares were left out and thus should be included in the instant succession.

30. In my considered view, it is very evident that the issues raised by the applicant do not constitute an error apparent on the face of the record. Respectfully, the application has the effect of lodging against the decision of this court to the very court that determined the matter. The applicant was aggrieved with the decision of the court for not including the assets in Succession Cause No. 270 of 2002 and the shares in the limited liability companies and thus the avenue for the applicant to file an appeal in a higher court but not to seek review. The court is being called upon to sit on appeal on its own ruling which is not supported by the law.

31. The applicant argues that if the orders are not granted, then she will not be able to have the 1/8 share of the deceased herein Evantus Gikandi Maina bequeathed to him in Nyeri Succession Cause No. 270 of 2002. I do not agree to this approach in that the 1/8 share which the deceased had not taken up before his death can still be distributed in Succession Cause No. 270 of 2002. the death of an administrator does not bring the cause to an end. Another administrator can be appointed on application by any of the beneficiaries and proceed to make the necessary application in regard to the distribution of the 1/8 share of the deceased among the rightful beneficiaries.

32. I have carefully considered the facts of this application and the submissions of the parties as well as the provisions of Order 45 Rule 1. I am of the considered view that the applicant has not met the threshold for review of the orders granted in the ruling of the court delivered on 15/07/2021.

33. Consequently, I find no merit in this application and it is hereby dismissed.

34. Each party to meet their own costs.

35. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 19TH DAY OF MAY, 2022. F. MUCHEMIJUDGERuling delivered through videolink this 19th day of May, 2022.