[2019] KEHC 10974 (KLR)
The court found that the applicants failed to satisfy the requirements for review under Order 45 of the Civil Procedure Rules. There was no discovery of new and important matter or evidence, no mistake or error apparent on the face of the record, and no other sufficient reason to warrant review of the orders...
Source-derived case information.
- Citation
- [2019] KEHC 10974 (KLR)
- Parties
- Applicant: Aneta Kagure; Applicant: Peter Mwaniki; Applicant: Charles Mathenge; Applicant: John Rugumi; Applicant: Simon Wachira; Applicant: Lucy Waihuni; Applicant: Lydia Wanjugu; Respondent: John Ngatia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 562 of 1993
- Procedural Posture
- Succession Cause / Ruling on Application for Review of Orders
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Succession, Grant Revocation, Probate, Estate Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aneta Kagure
Applicant
Peter Mwaniki
Applicant
Charles Mathenge
Applicant
John Rugumi
Applicant
Simon Wachira
Applicant
Lucy Waihuni
Applicant
Lydia Wanjugu
Applicant
John Ngatia
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review of Orders
Legal Issues
- 1 Whether plot No. 538 Muhotetu was part of the free estate of the deceased to be distributed among beneficiaries.
- 2 Whether the applicants established grounds for review of the court's orders under Order 45 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicants failed to satisfy the requirements for review under Order 45 of the Civil Procedure Rules. There was no discovery of new and important matter or evidence, no mistake or error apparent on the face of the record, and no other sufficient reason to warrant review of the orders previously issued. The court reiterated that the dispute regarding whether plot No. 538 Muhotetu formed part of the deceased's estate would be determined at the substantive hearing, and the preservation orders would remain in place to protect the estate. Consequently, the application for review was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application dated 4th June 2018 is dismissed with costs to the respondent.
- Preservation orders over the disputed parcels and other estate properties remain in force until final determination.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 562 OF 1993
IN THE MATTER OF THE ESTATE OF GERALD KARUGU WARUTA (DECEASED)
ANETA KAGURE...............................................................1ST APPLICANT
PETER MWANIKI.............................................................2ND APPLICANT
CHARLES MATHENGE....................................................3RD APPLICANT
JOHN RUGUMI..................................................................4TH APPLICANT
SIMON WACHIRA............................................................5TH APPLICANT
LUCY WAIHUNI..............................................................6TH APPLICANT
LYDIA WANJUGU...........................................................7TH APPLICANT
VERSUS
JOHN NGATIA.................................................................RESPONDENT
RULING
1. The deceased Gerald Karugu Waruta died on 23rd September 1991. He hailed from Nyeri County. He was survived by three widows:- Aneta Kagure (1st applicant), Chivira Kirigo and Hellen Wangui. He had 16 children. The children of the 1st applicant were Peter Mwaniki (2nd applicant), Charles Mathenge (3rd applicant), John Rugumi (4th applicant), Simon Wachira (5th applicant), Lucy Waihuni (6th applicant) and Lydia Wanjugu (7th applicant).
2. In 1993 the respondent John Ngatia together with Salome Muthoni, Titus Ndungu and Saul Mathenge (all being some of the children of the deceased) petitioned the court for the grant of letters of administration intestate. The grant was issued to them on 30th June 1993, and confirmed on 3rd June 2002. In the petition they claimed that plot No. 538 Muhotetu was one of the properties that the deceased had left. In the confirmed grant, this property was to be shared equally among twelve sons of the deceased. They included the 2nd, 3rd, 4th and 5th applicants. The grant to the petitioners was revoked in the ruling delivered on 7th May 2015. The court found that the deceased left a Will, and therefore a petition for grant of probate ought to have been filed.
3. The revocation was at the instance of the applicants.They had alleged the proceedings leading to the grant and confirmation had been done without their knowledge, and that the deceased had infact left a Will. Further, they claimed that before the deceased died he had transferred plot No. 538 Muhotetu to the first respondent which she eventually subdivided into four portions. She had taken one portion (Gituamba/Muhotetu/Block 2/875) and given parcels 766, 767 and 364 to her sons (including the 2nd and 3rd applicants). Their case was, therefore, that plot No. 538 Muhotetu and the resultant portions were not part of the free estate of the deceased to be shared among his beneficiaries.
4. It was the case of the respondent and the other petitioners in the revoked grant that plot No. 538 Muhotetu was one of the parcels in the estate of the deceased; that the applicants had fraudulently got it, subdivided and shared among themselves to the exclusion of the other beneficiaries. In brief, the dispute will seek to resolve whether or not plot No. 538 Muhotetu was the free property of the deceased to be shared among his beneficiaries. It was on this understanding that this court ordered that the parcels that came from the plot, that is Gituamba/Muhotetu/Block 2/875, 766, 767, and 364 and the other properties in the estate should not be sold, transferred or further transferred until the dispute is resolved.
5. This was a conscious order made to protect the estate until all the competing claims are heard and determined. The applicants will have an opportunity to prove that plot No. 538 Muhotetu was not part of the estate of the deceased.
6. I am conscious of the requirements for review under Order 45 of the Civil Procedure Rules. I find that there has been no proof of discovery of new and important matter or evidence, there has been no proof of mistake or error apparent on the face of the record, and there has been no proof of any other sufficient reason to warrant the review of the orders of 7th May 2018 (Tokesi Wambili & Others –v- Simon Litsanga, Civil Appeal No. 90 of 2001 at Kisumu).
7. I dismiss the application dated 4th June 2018 and filed on the same date by the applicants with costs.
DATED and DELIVERED at NAIROBI this 31ST day of JANUARY 2019
A.O. MUCHELULE
JUDGE