[2021] KEHC 7050 (KLR)
The court found that there was no error apparent on the face of the record in the judgment delivered on 13/03/2020. The judge's reasoning and the orders made were consistent, and the protestor's counsel was present during the delivery of the judgment but did not raise any objection at that time. The proper procedure...
Source-derived case information.
- Citation
- [2021] KEHC 7050 (KLR)
- Parties
- Applicant: William Nyaga Mamithi; Respondent: Mumbi Marumbo
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 691 of 2012
- Procedural Posture
- Succession Cause / Ruling on Application for Review of Judgment
- Outcome
- application for review dismissed
- Judges
- FN Muchemi
- Legal Topics
- Review of Judgment, Correction of Errors, Succession and Inheritance, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Nyaga Mamithi
Applicant
Mumbi Marumbo
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether there was an error apparent on the face of the record in the judgment delivered on 13/03/2020 regarding the names of the beneficiaries.
- 2 Whether the court should correct the alleged error through a letter instead of a formal application.
Ratio Decidendi
The court found that there was no error apparent on the face of the record in the judgment delivered on 13/03/2020. The judge's reasoning and the orders made were consistent, and the protestor's counsel was present during the delivery of the judgment but did not raise any objection at that time. The proper procedure for correction of a judgment was not followed, as the application was made by letter rather than a formal application served on the opposite party. The court further held that the protestor's remedy, if dissatisfied with the judgment, was to appeal rather than seek correction in this manner. Accordingly, the application for review was found to be without merit and was dismissed.
Court Disposition
application for review dismissed
Orders
- The letter dated 17/10/2020 seeking correction of the judgment is dismissed.
- No error is found in the judgment delivered on 13/03/2020.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO. 691 OF 2012
IN THE MATTER OF ESTATE OF NYAGA MAMITHI(DECEASED)
WILLIAM NYAGA MAMITHI..........................................PETITIONER
VERSUS
MUMBI MARUMBO.......................................................PROTESTOR
RULING
1. This is a ruling on an application for review of judgement filed through a letter by A.M Nganga and company advocates dated 17th October 2020. The request refers to this court’s judgement delivered on 13/03/2020 whose main finding was worded as follows:-
“For avoidance of doubt, Title No. Kirimukuyu/Mbogoini/247 shall be shared equally between William Nyaga Wamithi and Muthoni Wachira in equal shares absolutely. The grant of letters of administration intestate made to the petitioner is confirmed in the foregoing terms.”
2. It is pleaded that the judgement contains an error of names where the protestor Mumbi Marumbo was referred to in the judgement as Muthoni Wachira. It is this error that the counsel for the protestor A.M. Ng’ang’a & Company advocates seeks that it be corrected.
3. The procedure requires that any party applying for correction of any order in a judgement file a formal application which must be served on the opposite party. In this matter, the counsel for the protestor approached the court by a way of a letter which was not copied to the counsel of the opposite party. Under article 159 of the Constitution, I will not pay undue regard to technicalities and will proceed to deal with the letter as addressed to the court.
4. Rule 73 of the Probate Administration Rules empowers this court to make orders that may be necessary for the ends of justice or to prevent abuse of the due process of the court.
5. I have carefully perused the judgement of the court delivered on 13/3/2020 and noted that the dispute it was addressing was a protest that opposed the administrator’s summons for confirmation of grant.
6. The administrator was a child of the deceased while the protestor was a wife of the brother of the deceased. The evidence on which the judgement was based was that the deceased asset Kirimukuyu/ Mbogoini/247 measuring one(1) acre was held by the deceased in trust for himself and the house of Mumbi Mamithi and therefore the protestor was entitled to a share of the estate.
7. In the same judgement, the judge said that the protestor Mumbi Mamithi ought to have filed a suit in a court possessed of the jurisdiction to determine the claim of trust but not to claim trust in this succession cause. The court observed:-
“No proceedings for a determination of a trust were taken and, accordingly, no declaration of trust by a court of competent jurisdiction has been made. It follows that …..in the absence of a declaration of a trust, customary or otherwise, by a court of competent jurisdiction, this court cannot proceed to distribute the estate as if such trust exists. The protest would fail of that ground.
8. The Judge proceeded to distribute the estate of the deceased in accordance with the provisions of Section 38 of the Law of Succession Act.
9. The deceased was survived by two children the administrator William Nyaga Mamithi and his sister Muthoni Wachira. The final order of the court was that the estate of the deceased comprising of L.R Kirimukuyu/Mbogoini/247 measuring one(1) acre be shared between William Nyaga Mamithi and Muthoni Wachira in “equal shares absolutely”
10. The judgement was delivered on 13/03/2020 in presence of Ms. Mwai for Ng’ang’a for the protestor. Surprisingly it is the firm of Messrs Ng’ang’a & Co. Advocates who are asking this court through a letter to correct an error apparent on the face of the record having been represented in court during the delivery of the judgement.
11. In conclusion, it is my considered view that I find no error in the judgement as claimed. The reasoning of the judge is in agreement with the orders he made in the said judgement. The protestor ought to have appealed against the judgement of the court.
12. I find no merit in the letter dated 17/10/2020
13. It is hereby so ordered.
DELIVERED, DATED AND SIGNED AT NYERI THIS 13TH DAY OF MAY, 2021.
F. MUCHEMI
JUDGE
Ruling delivered through video link this 13th day of May,2021.