[2023] KEHC 25538 (KLR)

In re Estate of Miriam Edwin Mbugua (Deceased) (Succession Cause 84 of 2018) [2023] KEHC 25538 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25538 (KLR)

Republic of Kenya

In the High Court at Kiambu

Succession Cause 84 of 2018

A Mshila, J

November 17, 2023

IN THE MATTER OF THE ESTATE OF MIRIAM EDWIN MBUGUA (DECEASED)

Between

Peter Gacheru Mbugua

Applicant

and

Eunice Wanjiru Ikere

Petitioner

Ruling

1. Before court is an application by way of Notice of Motion dated 7th September, 2023 and brought under Order 45 Rule 1 and 2 of the Civil Procedure Rules2010. The Applicant sought for orders:-a.That the Honourable Court do review its ruling delivered on 18th August, 2023 at paragraphs 12 and 15 which has an apparent error stating that parcel No. Kiambaa/Kihara.T.394 is currently registered in the names of James Ngigi Gichinga and Grace Wambui Kamau.b.That parcel No. Kiambaa/Kihara/394 registered in the names of James Ngigi Gichinga and Grace Wambui Kamau is different from Kiambaa/Kihara/T. 394 which is registered in the names of Peter Gacheru Mbugua the applicant/Objector herein.c.That the difference herein lies in letter T. followed by a dot i.e (T.).d.That the applicant/Objector parcel no. has a letter T followed by a dot that is T. whereas James Ngigi Gichinga and Grace Wambui Kamau does not have a letter T followed by a dot hence the error needs to be rectified for the ends of justice to be met for the Applicant/Objector.

2. The application is premised on the grounds that there is an error on the face of the ruling dated 18th August, 2023 which needs to be rectified for the ends of justice to be met for the Objector.

3. The application is supported by the affidavit of Peter Gacheru Mbugua where he deposed that he is the registered owner of Parcel No. Kiambaa/Kihara/ T.394 which is different from Kiambaa/Kihara/394 which is registered in the names of James Ngigi Gichinga and Grace Wambui Kamau as his parcel has a letter T followed by a dot that is T. whereas the one in the names of James Ngigi Gichinga and Grace Wambui Kamau does not have a letter T followed by a dot as such the two are different parcels of land. The court was requested to rectify the error on the face of the record for the ends of justice to meet.

4. The application is not opposed.

Issues for Determination 5. Having considered the application, the main issue for determination is whether there is an apparent error on the face of the record.

Analysis 6. The relevant provisions in relation to the question of review are provided under Order 45, Rule 1(1) of the Civil Procedure Rules, 2010 as well as Section 80 of the Civil Procedure Act Cap. 21 Laws of Kenya, thus:“Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the 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, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

7. From the foregoing provisions and especially Order 45, Rule 1(1) of the Civil Procedure Rulesthe following are the grounds upon which an order for review can be granted:a)the discovery of new and important matter or evidence, orb)some mistake or error apparent on the face of the record, orc)any other sufficient reason.

8. Applicants seeking an order for review should bring their application without unreasonable delay. In the instant application, the ruling in question was delivered on 18th August, 2023 whereas the instant Motion was brought on or about 7th September, 2023. therefore, the application was brought without unreasonable delay.

9. The applicant states that paragraphs 12 and 15 have an apparent error as it states that parcel No. Kiambaa/Kihara.T.394 is currently registered in the names of James Ngigi Gichinga and Grace Wambui Kamau whereas parcel No. Kiambaa/Kihara/394 registered in the names of James Ngigi Gichinga and Grace Wambui Kamau is different from Kiambaa/Kihara/T. 394 which is registered in the names of Peter Gacheru Mbugua the applicant/Objector herein.

10. The difference was said to lie in letter T. followed by a dot i.e (T.) being that the applicant/Objector parcel no. has a letter T followed by a dot i.e T. whereas James Ngigi Gichinga and Grace Wambui Kamau does not have a letter T followed by a dot.

11. The court was urged to rectify the error for the ends of justice to be met by the Applicant/Objector.

12. In Republic v Public Procurement Administrative Review Board & 2 others (2018)eKLR it was held: -“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) 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 the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.”

13. A thorough perusal of paragraph 12 and 15 of the ruling delivered on 18th August, 2023 clearly shows that there is an apparent error on the face of the record in that in paragraph 12, Peter Gacheru Mbugua is indicated as the owner of Land Parcel No. Kiambaa/Kihara/394 whereas he is the registered owner of Land Parcel No. Kiambaa/Kihara/ T.394 vide a Land Certificate issued on 14/2/1986 and a Certificate of Search dated 21/3/2017.

14. In regard to paragraph 15 it is indicated that Land Parcel No. Kiambaa/Kihara/394 is registered in the names of James Ngigi Gachiga and Grace Wambui Kamau. The Objector is also indicated as the owner of the said parcel of land which is incorrect as he is the proprietor of Land Parcel No. Kiambaa/Kihara.T. 394.

15. In the circumstances and having found that the errors are apparent on the face of the record, this court finds this is a suitable application for review and it is hereby allowed. Paragraphs 12 and 15 are hereby amended as provided herein below.

16. Paragraph 12 reads as follows;-“On 19/7/2019 succession cause was published in the Kenya Gazette Notice no. 6666. Subsequently, the Objector herein on 15/8/2019 filed his objection to the making of the grant on the ground that he was the proprietor of land parcel no. Kiambaa/Kihara/T.394 as such the same does not form part of the deceased’s estate and that Caroline Wambui a person of unsound mind was coerced to sign the consent. He also filed his answer to the petition for a grant and a petition by way of cross-petition for a grant. He averred that the suit land now belongs to James Ngigi Gachinga and Grace Wambui Kamau. He attached a Certificate of Search dated 12/11/2019 to that effect. He also attached a title deed in his name that was issued on 14/2/1986. A medical review form showing that Caroline Wambui was a patient at Kihara Level 4 psychiatric clinic was also attached. He sought to be issued with the grant of representation to the deceased as he was better placed to search for assets owned by the deceased.”

17. The same is amended by the removal of the sentence underlined and highlighted hereinabove to read as follows;-“On 19/7/2019 succession cause was published in the Kenya Gazette Notice no. 6666. Subsequently, the Objector herein on 15/8/2019 filed his objection to the making of the grant on the ground that he is the proprietor of Land Parcel No. Kiambaa/Kihara/T.394 as such the same does not form part of the deceased’s estate and that Caroline Wambui a person of unsound mind was coerced to sign the consent. He also filed his answer to the petition for a grant and a petition by way of cross-petition for a grant. He averred that Land Parcel No. Kiambaa/Kihara/T.394 belongs to him. He attached a Certificate of search dated 21/3/2017 to that effect. He also attached a title deed in his name that was issued on 14/2/1986. A medical review form showing that Caroline Wambui was a patient at Kihara Level 4 psychiatric clinic was also attached. He sought to be issued with the grant of representation to the deceased as he was better placed to search for assets owned by the deceased.”

18. Paragraph 15 reads as follows:-“From the evidence on record, it is clear that land parcel No. Kiambaa/Kihara/T.394 is currently registered in the names of James Ngigi Gachiga and Grace Wambui Kamau as evidenced by the certificate of search dated 12/11/2019 which shows that the said persons were entered in the register on 5/11/1986. An earlier certificate of search provided by the Petitioner indicated that the Objector was the registered proprietor of the suit land having been issued with a title deed on 14/2/1986. ”

19. The same is reviewed by the removal of the letter “T” and the sentence highlighted and underlined hereinabove and now reads as follows:-“From the evidence on record, it is clear that Land Parcel No. Kiambaa/Kihara/394 is currently registered in the names of James Ngigi Gachiga and Grace Wambui Kamau as evidenced by the certificate of search dated 12/11/2019 which shows that the said persons were entered in the register on 5/11/1986. “

20. The findings and determinations at paragraph 17 remain the same.Orders Accordingly.

DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 17TH DAY OF NOVEMBER, 2023. A.MSHILAJUDGEIn the presence of:Mourice – Court AssistantMrs Njiru – for Applicant/Objector