[2022] KEHC 14651 (KLR)

In re Estate of Ezekiel Njihia Kinuthia aka Ezekiel Njihia Kinuthia Kihanya aka Njehia Kinuthia “A” (Deceased) (Succession Cause 16 of 2017) [2022] KEHC 14651 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14651 (KLR)

Republic of Kenya

In the High Court at Kiambu

Succession Cause 16 of 2017

MM Kasango, J

November 3, 2022

IN THE MATTER OF THE ESTATE OF EZEKIEL NJIHIA KINUTHIA ALSO KNOWN AS EZEKIEL NJIHIA KINUTHIA KIHANYA ALSO KNOWN AS NJEHIA KINUTHIA “A” (DECEASED)

Ruling

1. Gladys Wairimu Mbugua has filed a chamber summons dated September 1, 2022 seeking to review the order of this court issued by the ruling of July 6, 2022.

2. Application for revision is based on order 45 of the Civil Procedure Rules (hereinafter Procedure Rules). Gladys’ application is founded on her contention that the impugned ruling was made on some mistake or error apparent on the face of the record.

3. The Court of Appeal in the case Anthony Gachara Ayub v Francis Mahinda Thinwa (2014) eKLR, while approving the holding in the High Court stated thus:-“In the case of Draft and Develop Engineers Limited – V- National Water Conservation And Pipeline Corporation, Civil Case No 11 of 2011, the High Court correctly stated that:-‘An error apparent 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 a 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 a long drawn process of reasoning or on points where there may 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 apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.’”

4. From the above decision it becomes apparent the error, the subject of order 45 of the rules, is an error that ought to be on the face of the record. It should not be an erroneous decision. The gist of the application before court is that the court determined Gladys had not filed an appearance to a citation served upon her. Gladys contends that she had filed her appearance.

5. That argument by Gladys is erroneous and does not represent the ruling of July 6, 2022. To demonstrate the error Gladys makes, I will reproduce the relevant part of that Ruling as follows:-“Only Julius responded to the citation by filing affidavit. It would seem his objection to the petition was that the petitioners were from the same house. On March 5, 2014 that (sic) the court ordered the petition be gazetted and the citees were ordered to file cross petition. Julius and Gladys did not cross petition.”

6. Rule 21(5) of the Probate and Administration Rules (hereinafter Probate Rules) requires one who is cited to file an appearance within 15 days of service of the citation. The appearance filed as required under the above rule is, in my view, to provide an address of service and also acts as acknowledgment that the court has jurisdiction over the matter. Rule 22 of the Probate Rules requires a citee to either accept or refuse to take grant. Julius in this case filed an affidavit as required under rule 22 of Probate Rules while Gladys did not file anything apart from the appearance.

7. It becomes apparent from the above discussion that there was no error apparent on the record. Gladys did not respond to the citation to either accept or refuse grant. This fact is what is reflected in the impugned ruling.

8. Gladys in bringing the present application alluded to her grievance towards the impugned Ruling stating that the court by that ruling disinherited the house she comes from. On that ground, I would respond to Gladys by stating that she ought to file an appeal against that determination. This court cannot as Gladys requests, sit on an appeal against its own determination. An apt decision is the case. The Eastern And Southern African Development Bank v African Green Fields Ltd & 2others Civil Suit No 1189 Of 2000 where it was stated:-“I am tempted to say that although the plaintiffs application has the face of a review application it has the heart of an appeal.”

Disposition 9. For the above reasons, the chamber summons dated September 1, 2022 is dismissed with costs to the administrator.

RULING DATED AND DELIVERED AT KIAMBU THIS 3RD DAY OF NOVEMBER, 2022. MARY KASANGOJUDGEIn the presence of:-Coram:Court Assistant:- MouriceFor Samuel Njatha Njihia:- present in personFor Paul Ndungu Njihia:- present in personFor Gladys Wairimu:-N/ACourtRuling delivered virtually.MARY KASANGOJUDGE