[2022] KEHC 14807 (KLR)

In re Estate of Philip Mathenge Muraya (Deceased) (Succession Cause 145 of 2007) [2022] KEHC 14807 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14807 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 145 of 2007

FN Muchemi, J

November 3, 2022

IN THE MATTER OF THE ESTATE OF PHILIP MATHENGE MURAYA (DECEASED) STEPHEN MURIITHI MWEMA………...….PETITIONER/RESPONDENT VERSUS NEWTON M. MATHENGE…...………………PROTESTOR/APPLICANT

Ruling

Brief Facts 1. This application is dated May 13, 2021 and brought under Section 47 of the Law of Succession Act, Rules 63 & 73 of the Probate & Administration Rules and Order 45 of the Civil Procedure Rules seeks for orders for review of the orders made on May 4, 2021 and seeks to reinstate directions for hearing the protest dated July 8, 2009 by way of viva voce evidence.

2. The application was opposed by the respondent through his replying affidavit filed on July 16, 2021.

The Applicant’s Case 3. The applicant deposes that on 19/9/2014, the court made on order directing that the protest be heard by way of viva voce evidence. Thereafter, the matter came up for hearing on October 12, 2020 but the same did not proceed as the matter was taken out of the cause list. The applicant further contends that he was directed to take new dates in the registry. On March 1, 2021, the respondent’s advocates served the applicant with a hearing date of the protest scheduled for the 4th day of March 2021. The applicant states that the said date was taken ex-parte without inviting his advocates and in any event he states that he always attended court when the matter was fixed for hearing.

4. It is further stated that on May 4, 2021, no hearing took place and the court proceeded to make ex parte orders confirming the grant without listening to his protest. The applicant further states that on the said date he was present in court and he was not called out to state his case on behalf of the protestors.

5. The applicant states that the citors/petitioners are not family members and they have their own land L.R No. Tetu/thatha/126 which they occupy. The applicant further contends that the court would have reached a different conclusion that the citors are not entitled to their claim for 8 acres from the estate without any reason at all, had the court listened to the protest. The applicant further states that his father, the deceased left behind L.R No. Tetu/thatha/126 and L.R No. Tetu/thatha/41 is occupied by his children and grandchildren. As such, the applicant contends that it is in the interest of justice that the case proceed to hearing and prays that the court allow his application as prayed.

The Respondent’s Case 6. It is the respondent’s case that the summons for confirmation of grant was filed on 24/6/2009 to which the protestor filed a protest dated 8/7/2009. On December 10, 2013, the parties by consent agreed that the protest was to be heard by way of written submissions and a judgment date was set for 19/9/2014. On that date, the court set aside the consent order and ordered that the protest be heard by way of viva voce evidence.

7. The respondent contends that since the year 2014, the protest has always been fixed for hearing but the protestor has never been ready to proceed. The respondent further contends that by the time the original administrator died in 2018, the hearing had never kicked off. Contrary to what the applicant has averred in his affidavit, on October 12, 2020, the court was sitting when it dismissed the protest after six (6) years of accommodating the applicant to have the same heard.

8. The respondent states that a date for confirmation of the grant was fixed for November 23, 2020 but the court was not sitting and another date of 15/2/2021 was fixed and hearing notice served upon the applicant’s advocate. The respondent further states that the allegation that the date was taken without invitation is untrue as on 15/2/2021, the court was on official duties, thus unable to sit and that directions were given that fresh dates be fixed at the registry. Thus the summons for confirmation was set down for hearing on 4/5/2021 and that the applicant’s advocate had been duly served. The respondent states that the applicant was present in court during the date of confirmation of the grant. As such, the respondent contends that at no point was the date being fixed for the hearing of the protest which in any event had never been reinstated. Thus if the applicant has any recourse, the respondent avers that it can only be by way of appeal.

9. The respondent contends that the application is meant to delay the matter further while the applicant has shown blatant disregard of the court process by hindering and delaying the course of justice.

10. The applicant filed a Further Affidavit dated July 25, 2022, and stated that he is not delaying the matter by filing the current application. Rather it is the petitioner who is delaying the matter by adjourning the hearing of the protest thus denying him the chance to prosecute his protest. The applicant further states that the protest was dismissed on 4/5/2021 for want of prosecution although his advocate was held up in another court and had requested the respondent’s advocate to place the matter aside for him.

11. The applicant filed written submissions in respect of this application but the respondent opted not to do so.

The Applicant’s Submissions 12. The applicant reiterates what he deponed in his affidavit and relies on Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules and submitting that the court has a duty to uphold substantive justice which can be achieved by reinstating the application dated 15/5/2022 and vacating the orders issued on 4/5/2021.

13. The applicant further relies on the case of Civil Appeal No. 223 of 2013 William Koross and 5 Others [2015] eKLR and urges the court not to pay undue regard to technicalities but allow his protest to be heard on merit as the petitioner shall have a chance to cross-examine him as well.

Issue for determination 14. The main issue for determination is whether the applicant has met the threshold for the grant of orders of setting aside and review.

Whether the applicant has met the threshold for the orders of review 15. Review of decisions of a probate court is governed by Rule 63 of the Probate and Administration Rules, which provides as follows:-Save as in the Act or in these Rules otherwise provide, ad subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (Cap 21, Sub. Leg) together with the High Court (Practice and Procedure) Rules (Cap 8, Sub Leg.) shall apply so far as relevant to proceedings under these Rules.

16. This principle was enunciated in the case of John Mundia Njoroge & 9 Others vs Cecilia Muthoni Njoroge [2016] eKLR the court cited Rule 63 of the Probate and Administration Rules, and then stated as follows:-As stated above, the only provisions of the Civil Procedure Rules imported to the Law of Succession Act are orders dealing with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attending witnesses, affidavits, review and computation of time. Clearly, Order 45 relating to review is one of the Civil Procedure Rules imported into succession practice by Rule 63 of the Probate and Administration Rules. An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review as wet out in Order 45 of the Civil Procedure Rules.

17. Order 45 of the Civil Procedure Code sets out the parameters for an application for review as follows:-Rule 1 (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 on 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 judgment to the court which passed the decree or order made 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 which he applies for the review.

18. It then follows that Order 45 provides for three instances under which an order for review can be made. The applicant must demonstrate to the court that there has been 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 of passing the decree. Secondly, the applicant must demonstrate to the court that there exists some mistake or error apparent on the face of the record. The third ground for review is worded broadly; an application for review can be made for any other “sufficient reason.”

19. In the instant application, the applicant seeks for orders for setting aside of the orders made on 4/5/2021 on the grounds that there is an error apparent on the face of the record and that there is sufficient reason to review.

20. Has the applicant demonstrated existence of any error on the face of the record? The errors the applicant alludes to are not errors on the face of the record for they are not self-evident but are such that would require an elaborate argument to be established. This principle was enunciated by the Court of Appeal in National Bank of Kenya Ltd vs Ndungu Njau Civil Appeal No. 211 of 1996 (UR) where it held:-“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. “

21. Similarly in Paul Mwaniki vs National Hospital Insurance Fund Board of Management [2020] eKLR the court stated: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 provisions of law cannot be a ground for review.

22. The court went on to say:-The term ‘mistake or error apparent’ by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for purposes of Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Act. 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 judgment/decision. The wisdom flowing from jurisprudence on this subject is that no error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish it.

23. Evidently, from the above, it is clear that the error contemplated by order 45 ought to be so glaring that there can possibly be no debate about it. An error which has to be established by a long drawn out 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. On perusal of the court record, I have noted that on 19/9/2014, the court set aside the consent that the protest be heard by way of written submissions and directed that the protest be heard by way of viva voce evidence. Since then the matter has come up for hearing of the protest on various dates but the protest has not been heard. For instance on 22/2/2016, 12/3/2018 and 24/6/2020, the protestor and his advocates were not present in court to proceed with the hearing the dates having been taken by consent of the parties. Further on 24/7/2019 and 27/1/2020 the protestor sought adjournments on both occasions which were allowed by the court. On October 12, 2020, the protestor’s advocate who had been served with the hearing date was not present in court. The protest was therefore dismissed for want of prosecution. The record shows that the protestor’s advocate was served with the said date vide the affidavit of service filed in the court record on August 17, 2020. Thus the protestor was aware of the date but did not attend the hearing of the protest. On the same date, the summons for confirmation was fixed for hearing on November 23, 2020, which was confirmed in court on 4/5/2021. As such, the applicant’s contentions that there is an error on the face of the record and that there is sufficient cause to review the orders is not neither persuasive or correct.

24. The record bears witness that the protestor’s advocate was always duly served with the hearing dates and that other dates, were taken by consent. By the time the protest was dismissed, the court had accommodated the protestor and his advocate for quite some time.

25. Following the dismissal of the protest on May 4, 2021, the applicant has not obtained orders to have the protest reinstated. He cannot then proceed to seek for a prayer that the directions to hear the protest by way of viva voce evidence be reinstated. The protest has to be reinstated first should merit for such order be established before any other step can be taken towards the hearing of such protest.

26. In the further affidavit of the respondent sown on November 27, 2020, he states that his claim in this succession cause was based on a judgement obtained by his late father Mwema Muraya in Nyeri HCCNo. 107 of 1998 whereas the court ordered that his father be given eight (8) acres by the deceased in this case out of LR. Tetu/Thatha/41. This explains how the respondent came into this cause. As such, he is not a stranger in the proceedings as alleged by the applicant.

Conclusion 27. It is my finding that the application dated May 13, 2021 lacks merit and ought to be dismissed.

28. Each party will meet its own costs.It is hereby so ordered.

DATED AND SIGNED AT NYERI THIS 3RD DAY OF NOVEMBER, 2022. F. MUCHEMIJUDGERULING DELIVERED THROUGH VIDEO LINK THIS 3RD DAY OF NOVEMBER, 2022