[2023] KEHC 26536 (KLR)

In re Estate of of the Late Kanake Njogu (Deceased) (Succession Cause 60 of 1996) [2023] KEHC 26536 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26536 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 60 of 1996

EM Muriithi, J

December 7, 2023

IN THE MATTER OF THE ESTATE OF THE LATE KANAKE NJOGU (DECEASED)

Between

Kimathi Manene Njogu

Petitioner

and

Mugambi Kanake

Objector

Ruling

1. By Notice of Motion dated 1/10/2021 expressed to be brought under certificate of urgency under “under sections 1A, 1B, 3A Civil Procedure Act cap. 21, order 45 Civil Procedure Rules and all other enabling provisions of the law”, the petitioner /applicant sought the following reliefs:“1. That this Honourable Court be pleased to certify this application as urgent and have the same heard as such.2. That this court be pleased to review, rescind and/or vary its' Judgment dated 2nd September 2018 and delivered on 1st October 2018. 3.That Costs be provided for.”

2. The grounds of the application are set out in the application as follows:“1. That the Applicant herein is a beneficiary of the estate of Kanake Njogu (deceased).2. That there is new evidence that is available concerning this matter that was not available when the judgment was being delivered.3. That the trial court did not consider that their fathers owned a piece of land together, given to both of them by his grandfather one Njogu.4. That Kanake was given Abothuguchi/Mariene 722 while my father was not given anything after demarcation.5. That the Applicant wants the court to reconsider the judgment delivered on the 1st October 2018 since the trial court did not consider the place where the Applicant was born and raised and that the applicant has lived all his lifetime on Land Parcel Abothuguchi/Mariene/7226. That the deceased had made an oral will in accordance with the Meru traditions and his wishes were not honoured in the said judgment.7. That the Applicant stands to suffer irreparable loss.”

3. The facts relied on are deponed in the Supporting Affidavit of the Applicant sworn on 1/10/2021 set out in full as follows:“Supporting AffidavitI, kimathi manene njogu of P.O Box 765 - 60202 Nkubu do hereby state as follows:-1. That I am the Applicant herein and a beneficiary of the estate of Kanake Njogu (deceased).2. That I am requesting this Honourable Court to Review its Judgment dated 2nd September 2018 and delivered on 1st October 2018. ( Annexed herein and marked KN1" is a copy of the said Judgment)3. That there is new evidence that is available concerning this matter that was not available when the judgment was being delivered.4. That the trial court did not consider that our fathers owned a piece of land together, given to both of them by my grandfather one Njogu.5. That Kanake was given Abothuguchi/Mariene 722 while my father was not given anything after demarcation.6. That I want the court to reconsider the judgment delivered on the 1st October 2018 since the trial court did not consider the place where I was born and raised.7. That I have lived all my lifetime on Land Parcel Abothuguchi/Mariene/722 which was given to the Objector/ Respondent by the court without considering my evidence about possession and ownership.8. That the deceased had made an oral will in accordance with the Meru traditions and his wishes were not honoured in the said judgment. The court did not consider Kimeru tradition on distribution.9. That I moved to the High Court but there was some delay in getting the judgment and proceedings which necessitated me to complain to the ombudsman office. (Annexed herein and maked KMN2 (a) and (b) are copies of the receipt and letter indicating communication)10. That I therefore seek this court to review the current judgment due to the aforementioned reasons.11. That I stands to suffer irreparable loss.12. That all that is deponed to herein is true to the best of my knowledge save where otherwise stated in which case the same is true to the best of my information with the sources of such information clearly disclosed.”

4. It is not clear from the record why the application dated 1/10/2021 and filed on 28/10/2021 was not heard earlier. The hearing date for the application on 26/9/2023 was taken by the Respondent, Mr. Mugambi Kanake, but he did not attend court for the hearing of the application.

5. Counsel for the Applicant, Mr. Nyenyire, in urging the court to grant the application submitted that the same was unopposed, as follows:“Mr. NyenyireMr. Mugambi has not filed any response. The application dated 1/10/2023 is unopposed and I pray that it be allowed. The respondent is the one who took the date.”

6. Ruling was reserved.

Issue For Determination 7. The question before the court is whether the court will review the decision of the Court made in the impugned Judgment of Wendo J. delivered by Mabeya, J. on 3/10/2018 and reported In re Estate of Kanake Njogu (Deceased) [2018] eKLR where the court held:“After considering all the evidence before the court, I find the petitioner’s case is full of irreconcilable contradictions over his claim over parcel 722. I am satisfied that Kimathi’s father was given his portion of ancestral land parcel 535 where he settled with his family including Kimathi. Both the deceased and I’Manene were satisfied with what they were given as ancestral land during demarcation and no wonder I’Manene never made any claim to parcel 722 even if it was slightly larger than his parcel.I find that Kimathi’s claim over plot 722 is unfounded. He cannot try to undo what was settled in 1963 at the time of demarcation and which his father never opposed. I, therefore, dismiss Kimathi’s claim.I make the following orders:1. The grant of letters of administration issued to Kimathi on 17/6/1996 are hereby revoked;2. Mugambi Kanake is appointed as sole administrator of the deceased’s estate;3. The parcel Abothuguchi/Mariene/722 devolves to the objector as the only beneficiary of the deceased;4. The petitioner will bear the costs of this cause.”

8. The applicant is aggrieved by the decision of the Court and challenges it upon the grounds set out in the application for review. The preliminary issue therefore raised is whether the application made herein is suitable for review given the different scopes of review and appeal process.

Determination 9. In the leading case of William Karani & 47 others v Wamalwa Kijana & 2 others [1987] eKLR, 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.”[NB. Order XLIV has been replaced by Order 45 in the Civil Procedure Rules 2010]

10. It is now settled law that an aggrieved party cannot move for review of a judgment or order in order to obtain a different interpretation of the law or conclusion based on facts from that delivered by a trial court, and the correct approach is to an appellate court on appeal. 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.”

11. In this present case, the Court (Wendoh J.) has already made a determination on the facts and law, and a challenge on that finding must be by way of an appeal to the Court of Appeal.

12. The applicant does not claim to have discovered new material evidence after delivery of the judgment to found a proper claim in review. Instead, he accuses the court of not having considered his evidence as shown in the averment at paragraphs 7 and 8 of his Supporting Affidavit that –“7. That I have lived all my lifetime on Land Parcel Abothuguchi/Mariene/722 which was given to the Objector/ Respondent by the court without considering my evidence about possession and ownership.8. That the deceased had made an oral will in accordance with the Meru traditions and his wishes were not honoured in the said judgment. The court did not consider Kimeru tradition on distribution.”

13. With respect to Counsel, that is a claim on wrong interpretation of, or failure to give effect to, Kimeru customary law; and or failure to consider evidential facts before the trial court; and it is the proper purview for appeal, not review.

Orders 14. Accordingly, for the reasons set out above, the Court finds that the application herein dated 1/10/2021 for review of the Judgment of the Court delivered on 1/10/1018 is misconceived and it is dismissed.

15. There shall be no orders as to costs.

Order accordingly.

DATED AND DELIVERED ON THIS 7THDAY OF DECEMBER, 2023. EDWARD M. MURIITHIJUDGEAppearances:Mr. Nyenyire for the Applicant.Mr. Julius Mugambi Kanake, the Respondent in Person.