[2019] KEHC 5968 (KLR)
The court found that the applicant had not presented any new evidence or material that was not available at the time of the original judgment. The applicant's dissatisfaction with the outcome and disagreement with the court's findings did not constitute grounds for review under Order 45 Rule 1 of the Civil Procedure...
Source-derived case information.
- Citation
- [2019] KEHC 5968 (KLR)
- Parties
- Applicant: Amos Ng’ang’a Githua; Respondent: Eunice Wanjiru Githua; Respondent: Samuel Njogu Muriu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 423 of 1986
- Procedural Posture
- Succession Cause / Ruling on Application for Review of Judgment
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Succession, Intestate Estate, Review of Judgment, Probate and Administration, Grant of Letters, Family Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amos Ng’ang’a Githua
Applicant
Eunice Wanjiru Githua
Respondent
Samuel Njogu Muriu
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the applicant has established grounds for review of the court's judgment under Order 45 Rule 1 of the Civil Procedure Rules.
- 2 Whether the applicant has presented new and important evidence or shown an error apparent on the face of the record.
- 3 Whether the court is functus officio after delivering its judgment.
Ratio Decidendi
The court found that the applicant had not presented any new evidence or material that was not available at the time of the original judgment. The applicant's dissatisfaction with the outcome and disagreement with the court's findings did not constitute grounds for review under Order 45 Rule 1 of the Civil Procedure Rules. The court emphasized that an error in the conclusion of evidence or law is not a basis for review but for appeal. Consequently, the court held that it was functus officio and dismissed the application for review with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application for review is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 423 OF 1986
IN THE MATTER OF THE ESTATE OF GITHUA MURIU MWANIKI - (DECEASED)
AMOS NG’ANG’A...................................OBJECTOR/APPLICANT
VERSUS
EUNICE WANJIRU...............................................1ST RESPONDENT
SAMUEL NJOGU...................................................2ND RESPONDENT
RULING
1. The dispute between the applicant Amos Ng’ang’a Githua and the respondents Eunice Wanjiru Githua and Samuel Njogu Muriu is whether the deceased Githua Muriu Mwaniki left one widow (the 1st respondent) or had a second widow Gladwel Kanyi Githua (the mother of the applicant). The applicant claimed to be a son of the deceased. The deceased died intestate on 18th January 1986. The dispute was heard through oral evidence. In a judgment delivered on 7th March 2018 this court found that the deceased had only one widow (the 1st respondent), and that the applicant was not a son of the deceased.
2. In the Motion dated 23rd August 2018 the applicant came under Order 45 of Civil Procedure Rules Section 1A, 1Band3A of the Civil Procedure ActandRule 63 of the Probate and Administration Rules seeking to have the court review, vary and/or set aside its judgment dismissing his application filed on 20th January 2010. The grounds were that there was an error apparent on the face of the record and that there was sufficient cause to justify the review of the decision. In the supporting affidavit, the applicant’s substantial complaint was that the deceased had two houses, a fact known to the respondents, but that only the family of the 1st respondent had petitioned for the grant and obtained a certificate confirming the grant. The applicant was not satisfied with the decision that went against him.
3. Review underOrder 45 Rule 1 of the Civil Procedure Rules can only issue where there have been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or order made; or where there is some mistake or error apparent on the face of the record; or where there is other sufficient reason. The application should be brought without unreasonable delay.
4. The applicant has not placed before the court any new evidence or material. He basically did not agree with the decision that went against him. An erroneous conclusion of evidence or law cannot be a ground for review, but can be a ground for appeal (Francis Origo & Ano. –v- Jacob Kumali Mungala, [2005]2 KLR 307).
5. I agree with the respondents’ response that the application is without basis, and that court is functus officio. The application is dismissed with costs.
DATED and DELIVERED at NAIROBI this 10TH day of JULY, 2019.
A.O. MUCHELULE
JUDGE