[2018] KEHC 1024 (KLR)
The court found that the applicants failed to demonstrate any error apparent on the face of the record regarding the distribution of Butsotso/Shikoti/7956. The previous ruling had distributed 0.5 acre to two individuals and the remainder to seven others, less what had been sold, thus fully distributing the property....
Source-derived case information.
- Citation
- [2018] KEHC 1024 (KLR)
- Parties
- Applicant: Edward Omwaka Handa; Respondent: Adda Ndakala Handa
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 336 of 2008
- Procedural Posture
- Succession Cause / Ruling on Application for Review of Distribution Orders
- Outcome
- application dismissed
- Judges
- DN Musyoka
- Legal Topics
- Review of Court Orders, Distribution of Estate, Error on Face of Record, Discovery of New Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Omwaka Handa
Applicant
Adda Ndakala Handa
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review of Distribution Orders
Legal Issues
- 1 Whether there was an error apparent on the face of the record in the distribution of Butsotso/Shikoti/7956.
- 2 Whether there was discovery of new evidence justifying review of the orders made on 19th March 2015.
- 3 Whether the applicants are entitled to a redistribution of Butsotso/Shikoti/7956.
Ratio Decidendi
The court found that the applicants failed to demonstrate any error apparent on the face of the record regarding the distribution of Butsotso/Shikoti/7956. The previous ruling had distributed 0.5 acre to two individuals and the remainder to seven others, less what had been sold, thus fully distributing the property. There was no evidence of a one-acre portion being left undistributed. Additionally, the applicants did not present any new evidence that was not available at the time of the original proceedings. The court concluded that the grounds for review were not met and that the appropriate remedy for the applicants, if dissatisfied, was to appeal the decision rather than seek review.
Court Disposition
application dismissed
Orders
- The application dated 8th June 2015 is dismissed.
- The respondents shall have the costs of the application.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 336 OF 2008
IN THE MATTER OF THE ESTATE OF JOHNSTONE HANDA MUTSEMBI ALIAS JOHNSTONE HANDA, DECEASED
RULING
1. The application for determination is dated 8th June 2015. It is brought at the instance of Edward Omwaka Handa, seeking two principal orders:-
a. Review of orders that had been made on 19th March 2015 with regard to Butsotso/Shikoti/7956; and
b. Redistribution of Butsotso/Shikoti/7956 in the manner proposed in the application.
2. The grounds upon which the application is premised are set out on the face of the application. They include error on the face of the record and discovery of new facts. The applicants claim to occupy one acre of Butsotso/Shikoti/7956 while the rest is occupied by the respondents, and there is a boundary on the ground separating them. It is alleged that one acre was left undistributed. It is alleged that the court only distributed 0. 5 acre and left out 1. 0 acre.
3. The reply to the application is by Adda Ndakala Handa. She asserts that there was no error apparent on the face of the record. She contends that the proposal that the applicants get one acre out of Butsotso/Shikoti/7956 was advanced before the court at the trial, but was rejected. It is also argued that there has been no discovery of new evidence. The applicants are urged to appeal the decision in question.
4. Directions were given that the parties dispose of the application by way of written submissions. There has been compliance. I have read through the written submissions and noted the arguments made.
5. The decision sought to be reviewed is in a ruling delivered on 23rd February 2015, on protest proceedings that were conducted by way of viva voce evidence. Four witnesses testified. Eventually, the court decided that 0. 5 acre out of Butsotso/Shikoti/7956 should devolve upon Edward Handa and Noah Handa, with the remainder going to Adda Ndagala Handa, Noah Handa, Eglay Nyakowa, Ramona Abdalla, Naomi Mbaye, Lina Awiti and Leah Shikuku, less what was sold to third parties.
6. I have carefully considered the ruling as against the claim that there is an error on the face of the record and discovery of matter that was not before the court. The error alleged has not been demonstrated. The applicants allege that there was an acre that was left undistributed. From the ruling what I note is that the court distributed 0. 5 acres to two individuals, and then stated that the balance was to devolve upon seven others, less what had been sold. It is clear from that whatever remained after the devolution of the 0. 5 acre was fully distributed. The question of a one acre not being distributed does not in my view arise. There is no material that suggests that there was new evidence that the applicants have stumbled upon which they were not able to place before the court.
7. I agree with the respondents that the applicants have not made out a case for review, and if they were aggrieved by the orders finally made, they ought to have challenged the same on appeal. I find no merit in the application dated 8th June 2015. I shall accordingly dismiss the same. The respondents shall have the costs thereof.
DATED, SIGNED and DELIVERED at KAKAMEGA this 3RD DAY OF DECEMBER, 2018
W. MUSYOKA
JUDGE