[2011] KEHC 3165 (KLR)
The court found that the order closing the file was made in error because the only matter before the court was the withdrawal of the Chamber Summons dated 26th October 2009, not the entire succession cause. The succession cause itself remained pending and should not have been closed. The court held that this...
Source-derived case information.
- Citation
- [2011] KEHC 3165 (KLR)
- Parties
- Applicant: John Njagi Dan; Respondent: Julius Munene Dan; Respondent: Ciambaka Dan; Respondent: Mbaka Dan; Respondent: Nyaga Dan; Respondent: Kariga Dan; Respondent: Mutegi Dan; Respondent: Gitari Dan; Respondent: Kaari Dan; Respondent: Kanyua Dan; Respondent: Kagendo Dan
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 456 of 2009
- Procedural Posture
- Succession Cause / Application for Review of Order Closing File
- Outcome
- application for review allowed
- Judges
- MM Kasango
- Legal Topics
- Review of Court Orders, Grant of Letters of Administration, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njagi Dan
Applicant
Julius Munene Dan
Respondent
Ciambaka Dan
Respondent
Mbaka Dan
Respondent
Nyaga Dan
Respondent
Kariga Dan
Respondent
Mutegi Dan
Respondent
Gitari Dan
Respondent
Kaari Dan
Respondent
Kanyua Dan
Respondent
Kagendo Dan
Respondent
Procedural Posture
Succession Cause / Application for Review of Order Closing File
Legal Issues
- 1 Whether the order closing the succession file was proper in law.
- 2 Whether there was an error apparent on the face of the record justifying review.
- 3 Whether the succession cause should remain pending despite withdrawal of the application.
Ratio Decidendi
The court found that the order closing the file was made in error because the only matter before the court was the withdrawal of the Chamber Summons dated 26th October 2009, not the entire succession cause. The succession cause itself remained pending and should not have been closed. The court held that this constituted an error apparent on the face of the record and sufficient reason for review under Order 45 rule 1 (1) of the Civil Procedure Rules. Consequently, the order of 18th December 2009 was reviewed and set aside, the Chamber Summons was marked as withdrawn, and the succession cause was directed to proceed to gazettement for grant of letters of administration.
Court Disposition
application for review allowed
Orders
- The order made on 18th December 2009 is reviewed and set aside.
- The Chamber Summons dated 26th October 2009 is marked as withdrawn with no orders as to costs.
Full Case Text
Judgment text and source record
35 paragraphs
SUCCESSION
·Application of review.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
SUCC. CAUSE NO. 456 OF 2009
IN THE MATTER OF THE ESTATE OF THE LATE M’KENYA NJAGI (DECEASED)
JOHN NJAGI DAN ………………………………… PETITIONER
VERSUS
JULIUS MUNENE DAN ………...….…….…… 1ST OBJECTOR
CIAMBAKA DAN ………………..……………. 2ND OBJECTOR
MBAKA DAN …………………………………. 3RD OBJECTOR
NYAGA DAN ……………………..……………. 4TH OBJECTOR
KARIGA DAN ……………………...…………… 5TH OBJECTOR
MUTEGI DAN ……………………....…………… 6TH OBJECTOR
GITARI DAN ……………………....…….….…… 7TH OBJECTOR
KAARI DAN ………………………...…………… 8TH OBJECTOR
KANYUA DAN …………………….....………….. 9TH OBJECTOR
KAGENDO DAN …………………....………….. 10TH OBJECTOR
RULING
The petition for grant of letters of administration intestate in this cause was filed by John Njagi Dan (John). He did not file a consent of the other beneficiaries permitting him to file that petition. This was because all the beneficiaries refused to sign the consent. John cited all the beneficiaries of the estate and a memorandum of appearance was filed by the firm of Kiautha Arithi Advocates for all the beneficiaries. Julius Munene Dan (Julius) one of those beneficiaries filed an affidavit stating that John had filed the petition secretly without notice to the other beneficiaries. The matter came before court on 18th December 2009 for the hearing of an application dated 26th October 2009. That application was filed by John. John by that application was seeking that the grant in this cause be issued to all the beneficiaries of the estate who in total are eleven. When the matter appeared before court, the court recorded that it was incompetent. Learned counsel Mr. Kiambi appearing for John agreed with that observation and requested that it be marked as withdrawn. The proceedings show the following order was made:-
“Matter is marked withdrawn. This file should henceforth be closed.”
That order is now the subject of a Chamber Summons dated 25th March 2010. It seeks review of the order of 18th December 2009 to the extent that the court order the file be closed. The application is opposed on the basis that once the file was ordered by the court to be closed, the citation given by John became spent. Order 45 rule 1 (1) of the Civil Procedure Rules 2010 is the rule that deals with review. That rule provides as follows:-
“45 1. 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.”
There cannot have been a basis for ordering the file to be closed when what was being considered was the Chamber Summons dated 26th October 2009. I find that there is therefore sufficient reason as per order 45 rule 1 (1) to order review of this court’s order of 18th December 2009. It is also in my view that there is an error on the face of the record. This is because even if the court was of the view that the summons dated 26th October 2009 was incompetent the succession cause would still remain pending and the file should not have been ordered to be closed. It is for that reason that I grant the following orders:-
1. That the order made on 18th December 2009 is hereby reviewed and set aside.
2. An order is issued that the Chamber Summons dated 26th October 2009 be marked as withdrawn with no orders as to costs.
3. There shall be no orders as to costs in respect of the Chamber Summons dated 25th March 2010.
4. This court directs that the petition filed by John Njagi Dan be gazetted forthwith once payment for gazettement is made by the said John Njagi Dan.
Dated, signed and delivered at Meru this 13th day of April 2011.
MARY KASANGO
JUDGE