[2022] KEHC 2971 (KLR)

In re Estate of Ezekiel Waweru Muiruri (Deceased) (Succession Cause 2708 of 2012) [2022] KEHC 2971 (KLR) (Family) (16 May 2022) (Ruling)

Neutral citation: [2022] KEHC 2971 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2708 of 2012

AO Muchelule, J

May 16, 2022

IN THE MATTER OF THE ESTATE OF EZEKIEL WAWERU MUIRURI (DECEASED)

Between

Ann Wangari Waweru

Applicant

and

Margaret Mugure Waweru

Respondent

Ruling

1. The deceased Ezekiel Waweru Muiruri was knocked dead by a motor vehicle on 15th April 2008 along Thika/Kirwara road. He died intestate. He left two families: the house of the applicant Anna Wangari Waweru with whom he got eleven (11) children and the house of the respondent Margaret Mugure Waweru with whom he got five (5) children. He had married the applicant in church in 1963, and subseqnently married the respondent customarily in 1984.

2. The deceased left various parcels of land and shares in land buying companies.

3. The applicant and the respondent were appointed joint a administratrices of the estate of the deceased. In a judgment delivered on 31st October 2019 by Justice Ali-Aroni, the estate was shared to the beneficiaries. The court held that the deceased had acquired Plot No. 8 Ithang’arari, Plot No. 47 section SSS/4 Thika and Stall No. 375 Garissa Market – Thika while married to the applicant and before marrying the respondent, and therefore, the three properties should exclusively go to the applicant’s house. The rest of the estate was ordered to be valued and shared equally amongst the two houses taking into account the number of the children in each house.

4. The present application dated 17th November 2021 is by the applicant who seeks the review of the judgment and exclude Plot No. SSS.6/68 from what the two houses should share equally. This is because, she said, this property was acquired long before the respondent was married in 1984. She stated that at the time of the hearing of the evidence leading to the judgment she had unsuccessfully tried to get the Agreement for Sale and Transfer Form for this property to be able to adduce it in evidence. She has since obtained the same.

5. The respondent opposed the application. Her case was that the application was not merited as the evidence regarding the acquisition of the property was always within the applicant’s knowledge. This was property the applicant always collected rent from and therefore she knew when it was acquired, the respondent stated. Secondly, she opposed the application because it had been brought following inordinate delay.

6. Order 45 rule 1 of the Civil Procedure Rules provides that:-“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 made the order without unreasonable delay.”

7. In Rose Kaiza v Angelo Mpanju Kaiza[2009]eKLR, the Court of Appeal reiterated the caution it had given in its earlier decision in DJ Lowe & Company Ltd Banque IndosuezCivil Application NAI 217/98 (UR) as follows:-“Where such a review application is based on fact of the discovery of fresh evidence the court must exercise greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a different complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing.”The Court (in Rose Kiza v Angelo Mpanju Kaiza) then cited with approval the comments by Mulla in the India Civil Procedure Code 15th Edition at page 2726 as follows:-“Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the Court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.”

8. In the instant application, the hearing leading to the judgment that is sought to be reviewed was through viva voce evidence. Even without the Agreement for Sale and Transfer Form that the applicant states she subsequently obtained, she knew or ought to have known when the property was bought and/or developed. She knew whether this happened on or before the respondent was married to the deceased. She did not tender that evidence.

9. Secondly, the affidavit does not indicate when she obtained the Agreement for Sale and Transfer Form. How long did it take her to bring this application after she obtained the new evidence? She was silent on these matters. The mattes are important because an application for review under Order 45 rule 1 of the Civil Procedure Rules has to be made without unreasonable delay. In this case, the judgment was delivered on 31st October 2019 and the application for its review was brought on 17th November 2021. This was two years later. There was no explanation for the delay, and the court cannot exercise its discretion to allow the application.

10. In all, I find the application not merited and dismiss it with costs.

DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF MAY, 2022. A.O. MUCHELULEJUDGE