[2023] KEHC 25268 (KLR)

In re Estate of Lawrnce Abusalitsa Namoyi (Deceased) (Succession Cause 70 of 2005) [2023] KEHC 25268 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25268 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 70 of 2005

PJO Otieno, J

November 10, 2023

Between

Solomon Malenya Abusalitsa

1st Respondent

Caleb Munanga

2nd Respondent

Joseph Munanga Wase

3rd Respondent

and

Wilfrida Khitembuli

Applicant

and

Akata Museti

Interested Party

Agnes Khatemeshi

Interested Party

Alice Muhika

Interested Party

Ezina Mukanzi

Interested Party

Maurice Namoya

Interested Party

Dauglas Shilobele

Interested Party

Ruling

1. Before this court is the applicant’s notice of motion dated 12th May, 2023 brought pursuant to sections 80 and 1A of the Civil Procedure Act and order 45 rule 1 of Civil Procedure Rules and article 27 of the Constitution of Kenya, 2010 seeking in the main that the Honourable Court be pleased to review and/or set aside the orders made herein on 11th November, 2022.

2. The application is supported by the Affidavit of Wilfrida Khitembuli sworn on 12th May, 2023. In the affidavit, she avers that there has been discovery of new and important matter of evidence which was not within her knowledge, namely a sale agreement and other correspondences which indicate that she was not involved in the sale of parcel of land known as KAKAMEGA/SHINYALU/1222 to St. Agnes Girls’ High School.

3. The application was opposed by one Solomon Malenya Abusalitsa in a Replying Affidavit filed in court on 22nd May, 2023 in which he avers that the application for review is defective for being backed up by a decree that was not drawn in accordance with the provisions of order 27 rule 7 sub rule 1 of the Civil Procedure Rules. He further claims that the Applicant in her first application was claiming land parcel no. Kakamega/Shiakungu/959 yet in her present application she appears to be claiming LR Kakamega/Shinyalu/1222 which in the confirmation process she signed off to St. Agnes Girls’ High School.

4. When directed to file written Submissions, the Applicant submits that new evidence points to the fact that contrary to what the Honourable Court had been informed, neither the Applicant nor her late mother, Doriah Mutola were sellers of parcel of land known as Kakamega/Shinyalu/1222. She adds that the documents were supplied to her by St. Agnes Girls’ High School after this court had dismissed the Summons for Revocation of Grant dated 5th February, 2021. They claim that the Respondents personally and through their Counsel have misled the Court on the issue and sharing of the estate of the deceased in a bid to disinherit the Applicant.

5. For the Respondent, it is submitted that the subject application should be dismissed because the decree annexed to the application falls short of the provisions of Order 21 Rule 7(1) of the Civil Procedure Rules in that the particulars of the claim are not set out in the decree. The decision by the Court of Appeal in National Bank of Kenya Ltd vs Ndungu Njau [1997] eKLR on the principles applicable on applications for review.

Issue, Analysis and Determination 6. I have looked at the application, the response thereto and the Submissions and the issue that arises for my determination is whether the applicant has demonstrated that the ground put forth to warrant this court to review orders made on 11th November 2022.

Analysis 7. Rule 63 of the Probate and Administration Rules imports the application of civil Procedure Rules to Succession Causes including Order 45 on review. The provision makes it clear that an application seeking review in a Succession matter is governed by the Rules under Civil Procedure Act. In those Rules, a party is allowed to seek review on three specific grounds but in order to afford the Court the due latitude in the administration of justice, there is the broad ground dubbed any other sufficient cause.

8. The Rule relied upon by the Applicant provides that one is allowed to seek review he makes a 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. It is not every discovery of evidence that is anticipated by the Rule. The discovery must be that of new and important matter of evidence which was in existence at the time the matter was heard and decision made but could not obtained by the Applicant, due diligence notwithstanding. In the Affidavit sworn and filed by the Applicant no demonstration is made of what efforts were made to obtain the document said to be an agreement for sale yet that was a duty bestowed upon the Applicant to discharge.

9. For an Applicant to be entitled to an order of review of a Judgment order, he must strictly fit himself within the dictates of the Rule. See Sanitam Services (E.A.) Limited V Rentokil (K) Limited & Another (2019) eKLR.

10. The expression new evidence as used under the Rules is also found in the Constitution under article 50(6). The only difference being that the Rule use the additional term important while the Constitution employs the additional term as compelling. To this court the new evidence to warrant review must be that which is really new to the Applicant in that he was unable to avail same and could not avail same even after exercise of due diligence. Article 50(6) and its expression on new evidence was interpreted by the Supreme Court in Tom Martins Kibisu vs Republic (2014) eKLR in the following words: -“We are in agreement with the Court of Appeal that under Article 50(6), “new evidence” means “evidence which was not available at the time of trial and which, despite exercise of due diligence, could not have been availed at the trial.”

11. Without demonstration on the due diligence employed to obtain the evidence then, there is no qualification for the Applicant to merit review. Because review is a remedy that set back and undoes what the Court has done in the past, he who seeks to benefit from the remedy need to demonstrate that indeed he fits into the confines of the Rule. For the Applicant, the Court finds that there has not been proof that the fact and existence of the agreement for sale was not capable of being obtained by the Applicant with the application of due diligence.

12. For the reason that no due diligence was demonstrated, the application fails and is dismissed. Each party shall bear own costs.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 10TH DAY OF NOVEMBER, 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Mukabwa for the Administrators/Respondents for the AppellantNo appearance for Wilunda for the Applicant/ObjectorCourt Assistant: Polycap Mukabwa