[2020] KEHC 9765 (KLR)
The court found that the applicant failed to demonstrate the existence of new and important evidence or any error apparent on the face of the record as required under Order 45 of the Civil Procedure Rules. All matters raised in the application had already been considered and determined by Musyoka J in the earlier...
Source-derived case information.
- Citation
- [2020] KEHC 9765 (KLR)
- Parties
- Applicant: Hannah Wairimu Kariuki; Applicant: John Mwangi Kariuki; Respondent: Joseph Maina Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2923 of 2004
- Procedural Posture
- Succession Cause / Ruling on Application for Review of Consent Order
- Outcome
- application dismissed with costs
- Judges
- A Ali-Aroni
- Legal Topics
- Succession, Review of Court Orders, Consent Orders, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hannah Wairimu Kariuki
Applicant
John Mwangi Kariuki
Applicant
Joseph Maina Kariuki
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review of Consent Order
Legal Issues
- 1 Whether the court should review, vary or set aside the consent order issued on 26th February 2016.
- 2 Whether the application raises new and important evidence or demonstrates an error apparent on the face of the record.
- 3 Whether the matter is res judicata.
Ratio Decidendi
The court found that the applicant failed to demonstrate the existence of new and important evidence or any error apparent on the face of the record as required under Order 45 of the Civil Procedure Rules. All matters raised in the application had already been considered and determined by Musyoka J in the earlier ruling. The court emphasized that it cannot sit on appeal over a decision of a court of concurrent jurisdiction and that there must be finality in litigation. Consequently, the application for review, variation, or setting aside of the consent order was dismissed as lacking merit.
Court Disposition
application dismissed with costs
Orders
- The application dated 27th July 2018 is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
SUCCESSION CAUSE NO. 2923 OF 2004
IN THE MATTER OF THE ESTATE OF KARIUKI MAINA
HANNAH WAIRIMU KARIUKI...........................1ST PROTESTOR/APPLICANT
JOHN MWANGI KARIUKI...................................2ND PROTESTOR/APPLICANT
VERSUS
JOSEPH MAINA KARIUKI...............................ADMINISTRATOR/APPLICANT
R U L I N G
1. The application subject of this ruling was filed by the 1st protestor Hannah Wairimu Kariuki and is dated the 27th of July 2018. It is seeking to review, vary and/or set aside the orders of Musyoka J issued on 26th of February, 2016, on grounds that the court adopted a consent order which was recorded without sufficient facts, mis presentation and/ or ignorance of undisputed material facts and without the authority of the 1st Protestor.
2. The application was supported by the 2nd Protestor but objected to by the Respondent in an affidavit dated 4th September, 2017 and which in a nut shell states that the issue subject herein is res judicata having been considered by Musyoka J in his ruling of the 6th of February, 2016.
3. There is no dispute that in the application for revocation of grant the issue of the impugned consent, ground in this application was raised, and in his ruling of 26th February, 2016 the Judge considered the same.
4. In order for a court to review its decision there has to be discovery of new and important matter or evidence which even after due diligence it was not within the knowledge of a party, or on account of mistake or error apparent on the face of the order made or for any other sufficient reason.
5. In my view the applicant has failed to demonstrate the requirements set out in above as espoused in Order 45of theCivil Procedure rulesas there is nothing new that has been discovered, all matters having been raised before Musyoka J who extensively considered the same. If the 1st Protestor was aggrieved by the ruling she ought to have appealed against the same. There being no grounds to allow a review, this court cannot sit on appeal on a matter decided by a competent court of concurrent jurisdiction. Secondly there has to be an end to litigation and parties ought not to raise similar issues severally.
6. For the above reasons application dismissed with costs.
DATED and DELIVERED in NAIROBI on this 27th day of May 2020.
ALI-ARONI
JUDGE