[2022] KEHC 11771 (KLR)

In re Estate of Naumi Mulwa Nzei (Succession Cause 219 of 2011) [2022] KEHC 11771 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11771 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 219 of 2011

MW Muigai, J

May 12, 2022

IN THE MATTER OF THE ESTATE OF NAUMI MULWA NZEI

Between

John Muteti Mulwa

1st Petitioner

Esther Nduku Mulwa

2nd Petitioner

and

Nthike Mulwa alias Muthike Mulwa Nzeki

Respondent

Ruling

Summons dated 3rd July 2020 1. The Protester filed Summons under Rule 49 and 73 of the Probate and Administration Rules seeking the following orders;a.The Hon. Court be pleased to order the Respondents to subdivide land parcels Numbers Iveti/iveti/566 and Iveti/iveti/559 and transfer 1. 88ha and 0. 125ha respectively to the Applicant.b.The Hon. Court be pleased to order the Respondents to sign, fill in and lodge forms RL7 and RL19 at the Lands registry and in favour of the Applicant failure to which the Deputy Registrar to do so.c.Costs of the application be borne by the Respondent.

2. The same is supported by the affidavit of Nthike Mulwa alias Muthike Mulwa Nzeki dated 3rd July 2020 in which she deposed that judgement was delivered on 21st of April 2020 and a Certificate of Confirmation of Grant issued and the Petitioners have not yet shown intentions of nor acted upon the same.

Grounds of opposition 3. The Petitioners filed a grounds of opposition dated 11th September 2020 opposing the Summons on the grounds that;a.The application is misconceived, incompetent and is an abuse of the Hon. Court’s processb.The Application if fatally defectivec.There must be an end to litigationd.No merit in the applicant’s application has been demonstrated and the same should be dismissed with costs.

Affidavit in response to summons 4. The 1st Petitioner filed Summons in Response dated 6th February 2021 in which he opined that there is a decision of the Land Adjudication Officer by dint of which the Protester has already received her share of the deceased estate and allowing the Summons would prejudice him and his siblings.

Submissions on summons dated 3rd july 2020 5. The Protester contended that the Administrator has since the Ruling of 21st of April 2020 not shown any interest in complying with the same which directed that sub-division be done failure to which the Deputy Registrar should do so.

Summons for review dated 6/2/2020 6. The 1st Petitioner vide Summons for review dated 6th February 2021 under Section 47 and 93(1) of the Law of Succession Act and Rules 63 and 73 of the Probate and Administration seeks the following orders;a.That there be a review of this Hon. Court’s Ruling dated 21 April 2020 and any consequential orders thereto be set aside.b.That the Certificate of Confirmation of Grant herein dated 21st April 2020 and issued on 5th of May 2020 be revoked.c.That the Summons of Confirmation of Grant dated 20th May 2016 and the protest thereto be considered a fresh.d.Any other order that this Hon. Court may deem fit and just to grant in the circumstances.e.That costs of this Application be in the cause.

7. The same is supported by the affidavit of John Muteti Mulwa deposed on 6th February 2021 in which he opines that the court overlooked the fact of the existence of an already implemented decision of the Land Adjudication officer regarding the parcel of land forming the deceased estate upon which the protester has received his share of the estate and the 2nd Petitioner/ Applicant and her children will be prejudiced if the orders sought are not granted.

Protester’s affidavit in response 8. In Opposition, the Protester/Respondent filed a Replying affidavit dated 10th February 2021 in which she deposed that the court is functus officio having heard witnesses and decided in her favour. Furthermore, the grounds herein are ground for appeal and not for review and as such was a waste of the court’s time. She further deposed that the time within which to file an Appeal had lapsed and asked the court to dismiss the Summons and allow her to enjoy the fruits of her judgment.

9. At the time of writing this judgment, only the Protester’s/Respondent submissions dated 20th December 2021 were on record.

Protester’s submissions dated 21st april 2021 10. The Respondent submitted that the Application is not merited and should be dismissed as none of the grounds under Order 45 of the Civil Procedure Rules, 2010 has been fulfilled. She opined that the application had been filed 10 months after delivery of judgment which according to her is unreasonable delay.

Determination 11. This Court perused the two summons before the court, the court record and the submission of parties and noted that this Court heard this matter and delivered Ruling dated 21st April 2020 By Hon. D. K. Kemei J in the following terms;a.The grant of letters of administration intestate made to John Muteti Mulwa and Esther Nduku Mulwa on 20th December 2011 is hereby confirmedb.the Estate comprising of land parcels number Iveti/iveti/566 and Iveti/iveti/559 shall be distributed as follows;1. Iveti/iveti/566-1. 88 Ha be registered in the name of Muthike Mulwa Nzeki.- 1. 88 Ha be registered in the name of John Muteti Mulwa and Esther Nduku Mulwa to hold in trust for themselves and other children of the deceased.2. Iveti/iveti/559-0. 215 Ha be registered in the name of Muthike Mulwa Nzeki.- 0. 215 Ha be registered in the name of John Muteti Mulwa and Esther Nduku Mulwa to hold in trust for themselves and other children of the deceased.c.As parties are family members there will be no order as to costs.

12. The Court notes that the Protester wants compliance with the said orders while the Applicants want review of the same orders. The Court notes that there is no indication of an appeal that has been lodged by any of the parties herein. It appears that the piece of land is held in the names of the late Kaloo Mulwa and Muthike Mulwa Nzeki and what remains is the subdivision of the same in compliance with the Ruling of the Court. The adjudication result was that the parcels of lands were to be registered in the name of the co-wives which was done.

13. In the case ofIn Re Estate of Charles Kibe Karanja (Deceased)[2015] eKLR, the court observed as follows;“The proper approach ought to be an application for review of the orders made at the confirmation of the grant. The remedy of review of court orders is not directly provided for in the Law of Succession Act and the Probate and Administration Rules, but it is imported into probate practice by Rule 63 of Probate and Administration Rules, which has adopted a number of procedures from the Civil Procedure rules. Among the imported procedures is the device of review under the Civil Procedure Rules. In the relevant rules on review under the Civil Procedure Rules, an order of the court can be revised on the grounds of an error on the face or the record or discovery of new and important evidence that was not available at the time of the making of the order sought to be reviewed or for any other sufficient reason.Where known assets are omitted from the schedule of the property to be distributed or the name of a known beneficiary or heir is inadvertently left out of the confirmation application, an application ought to be made for review of the confirmation orders to accommodate the said assets or beneficiaries on the basis that the said assets or heirs were left out by mistake or error. Where assets are discovered after the court has confirmed the grant or a heir or survivor of the deceased who had previously been previously unheard of materializes after distribution, the court may review its orders made at the point of confirming the grant on the ground of discovery of new and important evidence that was not available at the time the grant was being confirmed.”

14. Review is provided for under Order 45 Rule 1 (1) of the Civil Procedure Rules, 2010 which provides as follows:-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 review of judgement to the court which passed the decree or made the order without unreasonable delay.”

15. A review of orders in a Succession court would consequently mean revocation or annulment of the grant that was issued on 5th of May 2020. The grounds for such an order are provided for in the Succession Act under Section 76 of which proviso states that;A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; orii)to proceed diligently with the administration of the estate; oriii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances

16. This Court in the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR observed that;20. Review is impermissible without a glaring omission, evident mistake or similar ominous error. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by an order or review.………………………30. The principles which can be culled out from the above noted authorities are:-i.A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.ii.The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.iii.An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80. iv.An erroneous order/decision cannot be corrected in the guise of exercise of power of review.v.A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.vi.While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.vii.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.viii.A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.ix.Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1. x.The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1.

17. From the above, the summons dated 6th February 2021, there are no grounds under the Succession Act nor under the Civil Procedure Rules, 2010 that have been provided that would warrant review of the Ruling of this Court. The information provided of Land Adjudication is not new and is something that was placed before the Trial Judge when the parties had their day in Court as confirmed from the Court Record. No appeal has been preferred against the Ruling of the Court of 21/04/2020.

18. Consequently, the Summons for review dated 6th of February 2021 is found without merit and is dismissed.

19. As regards compliance with the court order, it is a legal requirement that distribution ought to be done within 6 months of confirmation of the grant thus the orders issued by this court should be complied with as no court issues orders in vain. Section 83(i) of the Law of Succession Act provides;“To complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.

20. In Re Estate of Gitere Kahura (deceased) [2020]eKLR the court stated that;“the primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the Administrators must comply or the Court would be compelled to remove them as Administrators. The court further stated that administrators have a duty to the beneficiaries to ensure distribution of the estate within the stipulated time.”

Disposition 21. In the end, the Court order as follows;a.The summons dated 3rd July 2020 is upheld.b.The Summons for Review dated 6th February, 2021 is dismissed.c.The Petitioners hereby compelled to sign and/or execute all the requisite documents for transmission and subdivision of land parcels Numbers Iveti/iveti/566 & Iveti/iveti/559 as per the ruling dated 21st April 2020 within 30 Days.d.If the Petitioners fail to comply with this order, the Deputy Registrar of this court is authorized to sign/execute all the necessary documents to effect the transmission of Iveti/iveti/566 & Iveti/iveti/559 of the Protester’s share pursuant to the Certificate of Confirmation of grant issued on 5th May 2020.

22. It is so ordered.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 12TH MAY 2022. (VIRTUAL CONFERENCE)M. W. MUIGAIJUDGE