[2022] KEHC 14929 (KLR)

In re Estate of Nazir Khan Mohamed (Succession Cause 2 of 2019) [2022] KEHC 14929 (KLR) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14929 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause 2 of 2019

JN Onyiego, J

November 4, 2022

Ruling

1. The deceased herein Nazir Khan Mohamed died testate on August 16, 2019. Having executed a written will, he failed to appoint an executor. On January 23, 2019, His wife the petitioner herein petitioned for a grant of letters of administration with the will annexed. A grant of probate was issued onJune 7, 2019to Nasseem Nazir Khan the petitioner herein.

2. Later, on March 5, 2019, Saida Mohamed Swaleh claiming to be the second wife to the deceased filed an objection to making of a grant and a petition by way of cross petition for a grant. The objector claimed that she got married to the deceased on September 15, 2011and that she and the deceased were blessed with two children namely; Mohamed Fazal, and Jazleen Nazir Khan. She indicated that the 1st family (petitioner) was also blessed with three children namely; Mohamed Nazir, Mohamed Navid and Mohamed Nadir

3. During the hearing, the objector sought to be appointed as an administrator and she and her children be recognized as beneficiaries of the estate. Regarding the question of paternity, she stated that she was amenable to DNA examination being done to determine paternity of her children.

4. On her part, the petitioner claimed that the objector was married to another man and that she was not opposed to the children of the objector being subjected to DNA examination to determine their paternity. She expressed her willingness to accept the results if they turned out to be positive.

5. During the pendency of the objection proceedings, the petitioner filed an application dated February 1, 2021seeking that the objectors’ children be subjected to DNA examination through matching their samples with those to be extracted from her children sired with the deceased.

6. Equally, by a summons datedMarch 4, 2021, the objector sought DNA test done by extracting body tissues from the deceased’s body to be matched with those of the children.

7. After the close of the hearing of the objection, parties opted to argue the two pending applications for DNA examination. On May 10, 2021, parties agreed to dispose the two application through written submissions. The Objector was then given 14 days within which to file her submissions. Upon service, the petitioner to file hers within 14 days. The matter was fixed for June 9, 2016to confirm compliance.

8. On June 9, 2021, Mr Odera Counsel for the Petitioner and Ms Nafula holding brief for Mr. Khalid for the objector were present. Ms Nafula confirmed that they had been served with the petitioner’s submissions on June 2, 2012and prayed for 7 days to file their submissions. The court graciously granted the objector 7 days to file their submissions and ruling then fixed for July 23, 2021.

9. Unfortunately, when the court retired to write its ruling, the objector’s submissions were not in the court file and there was no evidence that they had been filed implying that they were not filed. The court at paragraph 16 of its ruling delivered on July 30, 2021observed as such.

10. In the said ruling, the court directed for sibling DNA to be done within 30 days by extracting samples from the children of both houses for matching. The ruling was delivered in the presence of Ms Nafula holding brief for Mr. Khalid for the objector and Mr. Odera for the petitioner.

11. On November 17, 2021, the petitioner filed an application seeking enlargement of time to conduct DNA examination. The court heard that application and on January 31, 2022 extended time by a further 30 days which order was disobeyed by the objector.

12. Subsequently, the objector filed an application dated 21st February, 202 seeking to review the orders of the court issued on September 30, 2021on grounds that there was an error apparent on the face of the record as the court failed to consider the objector’s submissions.

13. Before the review application could be heard, Mr Siminyu counsel who is now appearing for the objector in place of Mr. Khalid sought a chamber meeting with the judge in the presence of both counsel. The court agreed and on March 24, 2021the court met both advocates in chambers. While in chambers, Mr Siminyu raised the issue of missing submissions. Together with both counsel, the court perused the court file and indeed the objector’s submissions were not in the file.

14. Nevertheless, parties agreed to canvass the objector’s application for review dated February 21, 2022and filed on February 22, 2022seeking the court to review and or vary or set aside its orders of September 30, 2022. The application is based on the grounds set out on the face of it and an affidavit sworn on February 21, 2022by the objector herein who stated that the delivery of the ruling of September 30, 2021without the court considering her submissions was prejudicial to her case. That none of the parties will suffer prejudice if the court reviewed its orders after taking into consideration her submissions.

15. In response, Nazeem the objector herein filed her replying affidavit sworn on March 7, 2022 opposing the application thus stating that the objector/applicant had not met the threshold for review of the impugned court order as set out under Order 45 rule 1 of the CPRs and section 80 of Civil Procedure Act. That there was inordinate delay in filing the application for review without any explanation. That the grounds cited for review can only suffice as grounds for appeal and not review.

16. She averred that submissions are not strictly part of a case hence their absence is not prejudicial to the objector’s case. That the application was lacking in particularity hence an attempt to delay the case further.

17. In its rejoinder, the objector filed a further affidavit on August 2, 2022stating that the delay in filing the application was accompanied by her former advocate who never informed her of the ruling.

18. Parties agreed to canvass the application by way of submissions.

Objector/applicants’ submissions 19. Mr Siminyu counsel for the objector /applicant filed his submissions on August 17, 2022thus reiterating the content in the affidavit in support of the application. He took the court through section 80 the Civil Procedure Act and Order 45 (1) of Civil Procedure Rules which are relevant provisions governing review of a court order. Counsel contended that this court has powers to review its order where there is proof of mistake or apparent error on the face of it. To buttress that position, the court was referred to the case of National Bank of KenyavNdirangu Njau Civil Appeal No 211 f 1996.

20. According to Mr Siminyu, failure to consider the objector’s submissions is equivalent to the objector being condemned unheard. Learned counsel opined that had the court considered the submissions in question, it would have arrived at a different conclusion. In that regard, the court was referred to the case of D K Law AdvocatesvZhong Gang Building Materials Co Ltd and anotherMisc application No E21of 2020.

21. Mr Siminyu submitted that the petitioner having admitted that they were served with submissions, it implied that the objector’s submissions were filed hence an error apparent on the face of the record.

22. Regarding the question that the application was filed after inordinate delay, counsel submitted that a period of 4 months is not unreasonable. In this regard, the court was referred to the case of Pwani Baridi Ltd v Linus Chira Muya and another ELC No74 of 2021 where the court allegedly held that the delay in question could not hold the court from excising discretion in favor of the application for justice to be done.

Petitioner’s /respondent’s submissions. 23. Through the firm of Kagwima Karanja and Co. advocates, the petitioner filed her submissions on September 19, 2022also adopting the content of the replying affidavit. According to counsel, in law, submissions are not evidence in a case and that they are not compulsory hence a case can be heard or dispensed with without them. Learned counsel asserted that the court having confirmed from the court file in the presence of both counsel that submissions were not in the court file, it implies that they were not filed.

24. Counsel submitted that none of the grounds under Order 45 rule (1) of the Civil Procedure Rules had been established and that there was no apparent error nor mistake on the face of the record.

25. On the question of delay in filing the application, it was contended that there was no good explanation tendered to justify the delay. The court was referred to the case of In re estate of Maero Tindi (deceased)[2018] eKLR where the court found delay of 3 months unreasonable. Equally, reliance was placed in the case of Grace Wangui Ngenye v Tom Mushindi and another [2016] eKLR where the court found 3 months delay was unreasonable.

26. On the effect of failure to consider submissions, counsel urged that the applicant did not prove that had the court considered the said submissions it would have arrived at a different conclusion. To that extent, the court was referred also to the case of D K Law Advocates (supra)

27. Learned counsel opined that failure to consider submissions which are not on the court record is not an error on the face of the record. To solidify that position, the court was referred to the case of Paul Odhiambo Onyango and another v Kalu works limited[2020] eKLR.

Determination. 28. I have considered the application herein, response thereto and submissions by both counsel. The only issue which crystalizes for determination is whether the applicant has met the threshold for review.

29. The crux of the matter before me is the claim that the court did not consider the objector’s submission in its ruling of September 30, 2021.

30. The law governing issues of review orders is anchored under Section 80 of the Civil procure Act and Order 45 (1) of the Civil Procedure Rules.

31. Under Order 45(1) of the CivilProcedureRules, a party seeking review must prove that the application is filed without unreasonable delay; discovery of new or 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. This position was emphasized in the case of In the re estate of Maero Tindi( deceased) (supra)

32. It is incumbent upon the applicant to prove the elements set out in the above quoted provision. Is there discovery of any new matter or evidence that was not within the knowledge of the applicant when the impugned ruling or order was made? None was alleged nor proved. Was there mistake or error apparent? counsel for the objector claimed that there was an error apparent on the face of the record as the court failed to consider submissions for the objector.

33. From the court record, there were no submissions filed by the objector. When both counsel appeared in my chamber on March 24, 2022, we went through the court file and there was not a single copy of the said submissions. In her affidavit in support of the application, no copy of the court payment receipt for submissions was attached.

34. The court could not therefore consider submissions that were not on record. If the objector’s advocate filed submissions, then, no copy was filed in the court file. Accordingly, I do not find the court culpable for the omission. In any event, the person who filed the alleged submissions did not swear an affidavit to confirm that position.

35. In my view, even if there was proof that such submissions were there and therefore not considered, it will not amount to an error on the face of the record to warrant review but rather a ground for appeal. In Republic v Public Procurement Administrative Review Board & 2 others[2018] eKLR the court had this to say;“it is important to distinguish grounds of appeal and grounds for review. Guidance can be obtained from the case of National Bank of Kenya Ltd v Ndungu Njau (9) where the court held;“in my discernment, an order cannot be reviewed because it is shown that the Judge decided the matter on a foundation of incorrect procedure and or that his decision revealed a misapprehension of the law, or that he exercised his discretion wrongly in the case...”

36. In the circumstances of this case, I do not find any error to warrant review of the orders of September 30, 2021 which were made after considering parties respective applications and responses thereof by way of supporting and replying affidavits. It is therefore not tenable to claim that the objector/applicant was condemned unheard. If anything, the ground cited can only fit the shoes of an appeal and not review.

37. Considering the question whether failure to consider the objector’s submission occasioned an injustice or miscarriage of justice, the answer lies with the impugned ruling itself. Before arriving at this decision, the court did analyze both applications together with their affidavits. The ruling was therefore based on merit. It was incumbent upon the applicant/objector to prove or indeed to convince the court that had the court considered the alleged submissions it would have arrived at a different conclusion. SeeD K LawAdvocatesabove quoted by both counsel where the court explained that it was not enough to assert that submissions were not considered but go further and establish that if they were considered, the court would have arrived at a different conclusion.

38. In the instant case, such proof was not established. Suffice to say that, even if the submissions in question were made available, the position would have remained the same as DNA examination must be done to establish paternity of the disputed children by Subjecting them to DNA examination.

39. Regarding the question of unreasonable delay, the impugned decision was made on September 30, 2021 in the presence of both counsel .The application herein was filed on February 21, 2022 at least 5 months thereafter. The only justification given was that the objector’s former advocate did not inform her of the outcome. This is not a mistake of the court nor the petitioner’s mistake. Although excusable mistake of counsel should not be visited on his client, in this case, it is not excusable hence an act for indemnity from her former counsel. That burden should not be visited on an innocent party in this case the petitioner.

40. In the case of In the estate of Simoto Mwenje Isaka (deceased) 2020) e KLR the court held that an application for review which is filed very late in time with no justification is fit for dismissal. I am further guided by the holding in the case of Jaber Mohsen Ali and Matter v Priscilla Boit and another[2014]eKLR where the court observed what is unreasonable is dependent on the circumstances of each case and that even one day can be unreasonable.

41. In the circumstances, it is my finding that the delay of about 5 months is unreasonable. On the question whether the applicant will suffer prejudice, I do not see any because the ruling was addressing the issue of DNA which both parties wanted and the only point of departure is the source of DNA samples which the court directed accordingly.

42. Having held as above. I am satisfied that there is no other sufficient ground or reason adduced to justify review of the orders of September 30, 2021. To that extent, the application herein is dismissed with costs to the petitioner/respondent.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 4TH DAY OF NOVEMBER, 2022. ..............................J.N.ONYIEGOJUDGEPage 5 of 5