[2020] KEHC 10088 (KLR)
The court found that it had inadvertently erred in its previous ruling by proceeding on the basis that the sum of Kshs.11,742,400/52 had not been disputed by the applicant. Upon review, it was clear that the applicant had indeed contested the amount in her replying affidavit. Therefore, the court exercised its power...
Source-derived case information.
- Citation
- [2020] KEHC 10088 (KLR)
- Parties
- Applicant: Catherine Njeri Nduati; Respondent: Rose Nyawira Kibe
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2071 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Review of Previous Order
- Outcome
- Ruling reviewed and set aside; parties to address the court afresh; no order as to costs.
- Judges
- AO Muchelule
- Legal Topics
- Succession Estate Distribution, Refund of Funds, Review of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Njeri Nduati
Applicant
Rose Nyawira Kibe
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review of Previous Order
Legal Issues
- 1 Whether the previous ruling erroneously ordered the applicant to refund Kshs.11,742,400/52 instead of the disputed amount.
- 2 Whether the applicant had in fact disputed the amount claimed in her replying affidavit.
- 3 Whether the court should review and set aside its previous ruling based on an error apparent on the face of the record.
Ratio Decidendi
The court found that it had inadvertently erred in its previous ruling by proceeding on the basis that the sum of Kshs.11,742,400/52 had not been disputed by the applicant. Upon review, it was clear that the applicant had indeed contested the amount in her replying affidavit. Therefore, the court exercised its power under Order 45 rule 1 of the Civil Procedure Rules to review and set aside the ruling delivered on 3rd June 2019 and all consequential orders. The parties were directed to address the court afresh on the original application regarding the refund amount.
Court Disposition
Ruling reviewed and set aside; parties to address the court afresh; no order as to costs.
Orders
- The ruling delivered on 3rd June 2019 and all consequential orders are set aside.
- Parties to address the court afresh on the application dated 9th October 2017.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 2071 OF 2011
IN THE MATTER OF THE ESTATE OF PAUL MBUGUA KIBE- (DECEASED)
CATHERINE NJERI NDUATI.........................APPLICANT
VERSUS
ROSE NYAWIRA KIBE................................RESPONDENT
RULING
1. In the ruling dated 6th June 2019 by this court on the application dated 9th October 2017 by the respondent Rose Nyawira Kibe, it was directed that the applicant Catherine Njeri Nduati does refund to the respondent Kshs.11,742,400/52. The refund was ordered on the basis that the amount had not been disputed in her replying affidavit sworn on 20th November 2017 in response to the application. In the instant application dated 10th July 2019 for review under Order 45 rules 1and2of the Civil Procedure Rulesapplicant has pointed out that in her paragraph 5 of the replying affidavit she had contested the allegation that she was supposed to refund the said amount. In the application, the applicant asked that the ruling be reviewed so that the amount to be refunded is Kshs.4,121,518/49 and not Ksh.11,742,400/52.
2. The replying affidavit was sworn by Joseph Makumi Advocate on behalf of the respondent. Their case was that the sought Kshs.11,742,400/52 was on the basis that had Kshs.5,968,191/= been left in the account –
“would have grown to Kshs.11,742,400/= proportionately with the monies left in the account and this court has powers to make a determination on interest which can be in accordance with the bank rates or court rates.”
3. I find that on proceeding on the basis that the sum of Kshs.11,742,400/52 had not been disputed, the court inadvertently erred. Therefore, under Order 45 rule 1of theCivil Procedure Rules, I review and set aside the ruling that was delivered on 3rd June 2019 and all consequential orders.
4. I ask the parties to address the court afresh on the application dated 9th October 2017.
5. I make no orders as to costs.
DATED and DELIVERED at NAIROBI this 21ST SEPTEMBER, 2020
A.O. MUCHELULE
JUDGE