[2022] KEHC 14248 (KLR)

In re Estate of Mohamed Gatonge (Deceased) (Succession Cause 294 of 1996) [2022] KEHC 14248 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14248 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 294 of 1996

EM Muriithi, J

October 19, 2022

Between

Gauku Mohamed

Petitioner

and

Gitonga Mohamed

Objector

Ruling

1. By a ruling dated February 6, 2020, this court (Mabeya, J) dismissed two applications by the Petitioner respectively dated September 30, 2019 and November 5, 2019 with costs as follows:-“14. I have already found that the application for interpretation [application dated September 30, 2019] is not only incompetent, but that it does not lie. That being the case, the second application for stay [application dated November 5, 2019] has no basis and the same is therefore dismissed.15. Accordingly, both applications dated September 20, 2019 and November 5, 2019 are dismissed with costs.”[Brackets supplied]

2. The petitioner was aggrieved and she filed a notice of appeal dated February 18, 2020 and filed on the same date in the High Court registry. A request for proceedings in the petitioners’ hand is sworn to have been received and paid for February 24, 2020.

3. On March 12, 2020, the petitioner filed a notice of motion seeking the following specific prayers:-1. That this honourable court be pleased to review its orders of February 6, 2020 in respect of the applications dated September 29, 2019 and November 8, 2019, respectively.2. That this honourable court do make any or any other orders as would meet the interests of justice in this case.3. That the cost for and incidental to this application be provided for.”

4. The respondent did not reply to this application and dispute service of hearing notice for December 2, 2021 did not attend court for its hearing.

5. In urging the application dated March 12, 2020, the petitioner who is unrepresented informed the court that “there is an order for payment of costs. I had filed a notice of appeal. I pray that the court sets aside the order for costs.”Ruling was reserved.

Determination 6. The court has considered the notice of motion dateMarch 12, 2020. The law is clear that where there is already an appeal filed (and an appeal for purposes of the court of appeal is filed upon filing of a notice of appeal) there is no jurisdiction on the court to review the judgment or orders appealed from. The prayer for review merges in the appeal on the merits for the decision of the trial court.

7. SeeWilliam Kerani & 47 others v Wamalwa Kijana & 2 others. [1987] KLR 557, where the Court of Appeal (Nyarangi, Platt & Gachuhi JJA) discussed the two procedures of review and appeal as follows:“Both section 80 and order XLIV commence by explaining the fundamental nature of review. It is to be a means of curing gross or obvious errors when an appeal is allowed by the act, from a decree or order, but no appeal has been preferred; and secondly in cases where no appeal is allowed at all. The broad division then is between the appeal procedure as the general method of curing errors, with its scope to deal with errors of evidential fact or law, or mixed fact and law, and the review procedure, to cure a narrower compass of defects, which cannot be allowed to stand in justice, simply because there is no appeal. From the nature of section 80 and order XLIV both procedures cannot be adopted at once. Hence, supposing that an appeal is allowed by the act but has not been preferred, review may be taken, if appropriate. Once an appeal is taken, review is ousted and the matter to be remedied by review must merge in the appeal.”

8. Moreover, it would appear that the applicant is challenging the conclusion of the court in dismissing her two applications with costs. There is no review from a wrong conclusion of law. Where an aggrieved party is seeking a different interpretation of the law or evidence, the correct procedure is an appeal. See National Bank of Kenya Limited v Ndungu Njau [1997] eKLR where the Court of Appeal (Kwach, Akiwumi & Pall, JJA) explained the two procedures of review as follows:“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.””

9. The petitioner in this case filed her appeal upon filing of the notice of appeal (see rule 75 (1) of the Court of Appeal Rules). The petitioner is, therefore, not entitled to seek review of the court order made upon the ruling of February 6, 2020, as it is clear that the right to seek review under order 45 rule 1 of the Civil Procedure Rules is available only to :-“(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.”

Orders 10. Consequently, the petitioners’ application dated March 12, 2020 is dismissed.

11. However, in the interest of an expeditious disposal of the dispute, the court makes an order for priority typing of the proceedings and supply of the certified proceedings and ruling and order of the court of February 2, 2020 pursuant to the request for proceeding filed herein.

12. As the petitioner is self–representing, and the respondent did not enter a response to the application subject of this ruling, there shall be no order as to costs.Order accordingly.

DATED AND DELIVERED THIS 19TH DAY OF OCTOBER, 2022. EDWARD M. MURIITHIJUDGEAPPEARANCES:The Petitioner in Person.N/A for the Respondent.