[2023] KEHC 25659 (KLR)

In re Estate of Peter Charles Nderitu (Deceased) (Succession Cause 307 of 2006) [2023] KEHC 25659 (KLR) (Family) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25659 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 307 of 2006

MA Odero, J

November 17, 2023

Between

Angela Wambui Nderito

Applicant

and

John Kangethe Nderito

1st Respondent

Florence Auma Nderito

2nd Respondent

Elizabeth Wariara Nderito

3rd Respondent

and

Tania Wariara Nderito

Objector

Wambui Nderito

Objector

Ruling

1. Before this Court for determination is the summons dated 12th January, 2023 by which the Applicants TWN and WN seek the following orders:-“1. Spent.2. Thatthe Honourable Court be pleased to review, set aside and/or vacate the orders made on the 28th August, 2015 by Lady Justice Muigai M. to the extent that all the property known as LR xxxx/xxx will be subject to the 2 siblings Angela Wambui Nderito and John Kang’ethe Nderito in equal shares.3. Thatcosts of this application be in the cause”.

2. The application which was premised upon order 45 of the Civil Procedure Rules, 2010 and Sections 26 and 27 of the Law of Succession Act (Cap 160) and all enabling provisions of Law was supported by the Affidavit of even date sworn by the Applicants.

3. The 1st Respondent JKN opposed the application through the grounds of opposition dated 6th February, 2023 whilst the Petitioner AWN filed a Replying Affidavit dated 19th January, 2023.

4. The application was canvassed by way of written submissions. The Applicants filed the written submissions dated 23rd May, 2023 whilst the Respondents relied upon their written submissions dated 24th May, 2023.

Background 5. This succession cause concerns the estate of the Deceased PCN who died intestate on 9th February 1999. The Deceased was survived by the following:-(a)EWN – Widow(b)AWN – Daughter(c)MMN (now deceased and survived by a widow FAN and two children TWN and WN – now adults)(d)JKN – son

6. The estate was said to comprise of the following properties:-(a)L.R. No. xxxx/xxx Nairobi Lavington – Matrimonial Home(b)L.R. No. xxxx/xxxx, Kitisuru, which is a 1. 25 acre parcel of land.(c)L.R. No. IMS/xxx Mainland South Mombasa(d)Githurai Plot: share certificate No. xxx, 025 acre parcel of land.(e)Githurai Plot; share certificate No. xxx which is 0. 25 acre parcel of land.(f)1283 ordinary shares, standard chartered, account No. xxxx, valued at approximately Kshs 256,000/- together with the Dividend cheques from the shares amounting to Kshs 196,000 which are listed at the unclaimed financial assets authority.

7. Letters of Administration in respect of the estate of the Deceased were initially issued to the widow EW on 8th November 2006. However vide a judgment delivered on 28th August 2015 Hon Lady Justice M.W. Muigai appointed Angela Nderito the current Administratrix to the take over as Administrator of the estate. The letters of Administration issued to Angela remain unconfirmed to date.

8. In the Ruling delivered on 28th August, 2015 Hon. Lady Justice Muigai made the following orders:-“1. The Applicant AWN is appointed as Administrator of the Deceased’s estate by virtue of Section 76 (d) of the Succession Act.2. The new Administrator shall trace and confirm properties comprised of the Deceased’s estate available for distribution.3. The Administrator shall file within 90 days Summons for confirmation of Grant and proposed mode of distribution of remaining assets available for distribution.4. Any party with an objection to file an alternative mode of distribution and the court shall determine.5. The Respondent EWN shall file in court a full and accurate inventory of the Administration of the estate from 2006 – 2015 within 90 days from today.6. The suit property LR xxxx/xxx shall be part of the Deceased’s estate available for distribution to the beneficiaries.7. LR xxxx/xxx shall not be part of the Deceased’s estate and not be available for distribution. The Deceased transferred to his son late Martin Mathenge, the property as gift during his lifetime. The property shall remain and belong absolutely to Florence Auma Nderito. Tanya and Wambui Nderito; Martin Mathenge Nderito’s family.8. No orders as to costs”.

9. By this application the Applicants seek to have that Judgement reviewed. The Applicants states that they are the children of the late MMN, who is one of the beneficiaries of the estate of the Deceased. The Applicants aver that the finding by Hon. Lady Justice Muiga that the properties known as LR No.xxxx/xxx had been gifted to their late father by the Deceased was erroneous.

10. That as a result of that erroneous finding the Honourable Judge proceeded to allocate the adjacent property being LR No.xxxx/xxx to their Aunt and Uncle respectively.

11. The Applicants state that the true facts are that their late father actually acquired Plot 285 for valuable consideration. That the Deceased had obtained a loan facility from Standard Chartered Bank (hereinafter ‘the Bank’) for which he had used LR No.xxxx/xxx (the entire property) as security.

12. The Deceased defaulted in repaying the loan and the Bank threatened to exercise its statutory power of sale. That with the consent of the Bank the Deceased proceeded to subdivide the land into two portions being LR No.xxxx/xxx and LR No.xxxx/xxx. That one parcel of land was to be sold by private treaty in order to pay off the loan arrears which then amounted to Kshs.1,500,000/=.

13. Thereafter the Deceased entered into an agreement with his son (the Applicants’ father) for the latter to purchase LR No.xxxx/xxx for the consideration of buying off the loan with the Bank. That the said MM secured a loan of Kshs.1,500,000/= from Housing Finance Company of Kenya and the property was then transferred to him. That to date the Title document for Plot xxx remains with HFCK and is in the name of Martin Mathenge Nderito.

14. The Applicants claim that their mother made attempts to have the erroneous finding in the Judgement of 28th August, 2015 corrected by filing a complaint against the Judge who delivered the Ruling and by filing objection proceedings all to no avail.

15. They plead that they now stand to be disinherited from the only home they have ever known being LR No.xxxx/xxx. On this basis the Applicants pray that the said Judgement be reviewed to reflect what they believe is the true position.

16. The Respondent vehemently opposes this application for review. He submits that the application is defective as the decree being challenged has not been annexed. The Respondent argues that the learned Judge made the correct decision as no document had been placed before the court to show that the Deceased had transferred LR No. xxxx/xxx to the Applicants’ father.

17. The Respondent further argues that EN who was the initial Administrator of the estate swore an Affidavit dated 8th July, 2010 in which she stated that LR No. xxxx/xxx was to be shared between JN and AN.

18. The Respondents also cites the fact that in a letter dated 16th December, 1992 written to the Principal Registrar of Titles Nairobi the Deceased stated that LR No. xxxx/xxx was to remain in his name whilst LR No.xxxx/xxx was to be transferred to MMN. That the transfer was to be effected out of “Natural love and affection”.

19. Finally the Respondent argues that this application has come too late in the day that the same has been filed maliciously in order to delay the confirmation of the Grant. That the application amounts to an abuse of court process and ought to be dismissed.

Analysis and Determination 20. I have carefully considered this application, the Reply filed thereto as well as the written submissions filed by both parties. The Applicants are seeking to review the Ruling delivered on 28th August, 2015. A copy of the said Judgement appears as Annexture ‘AN ‘4’ to the Affidavit of protest dated 28th May, 2020.

21. The Respondent has submitted that the present application is defective as the decree or order which the Applicant seek to review was not annexed to the application.

22. Whilst it is true that the decree/order was not annexed in my own view this does not render the application fatally defective. Article of the Constitution of Kenya 2010 exhorts courts to administer justice without undue regard to technicalities. Failure to attach the order does not make this application fatally defective.Order 45 Rule (1) of the Civil Procedure Rules provide that:-1. 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 orb.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 an 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 a review of Judgement to the court which passed the decree or made the order without unreasonable delay.2. A party who is not appealing from a decree or order may apply for a review of Judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the Applicant and the Appellant, or when, being Respondent, he can present to the appellate court the case on which he applies for the review.”3. Order 45 Rule 1 is very explicit that a court may only review its orders on the following grounds:-(a)There must be discovery of new and important evidence which after the exercise of due diligence, was not within the knowledge of the Applicant at the time the decree was passed or the order was made; or(b)There was a mistake or error apparent on the face of the record; or(c)There were other sufficient reasons; and(d)The application must have been made without undue delay”.

23. On the question of delay the impugned Judgement was delivered on 28th August, 2015. This application seeking to review that Judgement was made in January, 2023 almost eight (8) years after the Judgment was delivered. The Applicants have not advanced any valid and or convincing reason for this great delay.

24. In the case of SGK -vs- NWW t/a Providence where there was a delay on one (1) year Auctioneers (2016) eKLR the court held as follows:-“Perhaps it is important to recall the last sentence of Order 45 Rule (1) (b) which reads““… may apply for review of Judgement to the court which passed the decree or made the order without unreasonable delay”The logical question that follows is was the present application made without unreasonable delay? Or is a delay of one year reasonable ….. under normal circumstances it should not take an Applicant one year to file an application in court. It would require sufficient explanation to justify a delay of one year. To my mind this is a long period and indeed an unreasonable delay.” [own emphasis]

25. The above case was dealing with a delay of one (1) year which was found to be unreasonable. In this case the delay is over eight (8) years. The Applicants are truly guilty of laches.

26. There has been undue delay in bringing this application which delay is unexplained. It is obvious that this application for review is nothing but an afterthought and on that ground alone merits dismissed.

27. Having said that for purposes of completeness I will proceed to examine the grounds advanced for seeking the review.

28. The Applicants submit that they are seeking a review of the Judgement due to an error apparent on the face of the record. That the finding by the learned trial Judge that the property known as LR No. xxxx/xxx was a gift inter vivos by the Deceased to his son MM was erroneous.

29. What is an error apparent on the face of the record.In Nyamogo and Nyamogo –vs- Kogo (2001) E.A. the Court of Appeal gave its definition of what constitutes an error apparent on the face of the record in the following terms:-“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of undefinitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be on two opinions, a clear case of error apparent on the face of the record would be made out. 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. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal”. [own emphasis]

30. An error apparent on the face of the record refers to that error which is clearly discernible and does not require any further elucidation. In NAtional Bank of Kenya Limited -vs- Ndungu Njau (1997) eKLR the held Court of Appeal thus:-“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…”

31. Likewise Mativo J. in REpublic vs Advocates Disciplinary Tribunal Ex Parte Apollo Mboya (2019) also held as follows:-“The term “mistake or error apparent” by its very connotation signified an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof required long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purposes of Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Act. To put it differently an order, decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court tribunal concerned cannot sit in appeal over its judgement/decision”. [own emphasis]

32. The ‘erroneous finding’ referred to by the Applicants does not in my view qualify as an error apparent on the face of the record. It is not an error which is self-evident. Rather it is one which requires long arguments on the part of the Applicants. Indeed, the Applicants have in paragraph (10) of their Supporting Affidavit annexed numerous documents to support their contention that their father Martin Mathenge purchased Plot 285.

33. The fact that so much arguments and reasoning is required to support their contention means that this is not an error apparent on the face of the record.

34. Effectively, what the Applicants are alleging is that the trial Judge reached a wrong finding on the basis of the facts before her. It is not for this court to determine whether or not the Judge made an error in finding as she did. I cannot sit in appeal over the decision of a Judge of concurrent jurisdiction.

35. The issue being raised by the Applicants are matters for appeal not for review. The Applicants ought to have moved to appeal the Judgement of 28th August, 2015.

36. The question arises as to just when did the Applicants discover this ‘error’. The Fact that the land was not a gift must have been known to the Applicants in the year 2015 when the matter was being canvassed – why did they keep silent until eight (8) years after the Judgement. There is no evidence of the discovery by the Applicants of a new and important matter which by due diligence they could not have been aware of when the matter was being argued.

37. Finally, I find no merit in this application for review. The same is dismissed in its entirety. Costs will be borne by the Applicants.

DATED IN NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. MAUREEN A. ODEROJUDGE