[2023] KEHC 26264 (KLR)

In re Estate of Silas Mwangi Kamau (Deceased) (Miscellaneous Civil Application E18 of 2023) [2023] KEHC 26264 (KLR) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26264 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Civil Application E18 of 2023

G Mutai, J

December 1, 2023

IN THE MATTER OF THE ESTATE OF THE SILAS MWANGI KAMAU (DECEASED)

Between

Hellen Wanjiru Kahiga

Applicant

and

Muturi Gakuo & Kibara Advocates

1st Respondent

Jane Muthoni Mwangi

2nd Respondent

Ruling

1. Before this court is a Notice of Motion dated 10th August 2023 vide which the following orders are sought: -a.Spent;b.Spent;c.That the ex-parte orders of this honourable court of 22nd May 2023 and issued on 23rd June 2023, transferring Mombasa MCSUCCMISC Cause E014 of 2023; In the estate of the Silas Mwangi Kamau (deceased) to the High Court of Mombasa Family Division be reviewed and Mombasa HCFMISC No. E018 of 2023; In the estate of Silas Mwangi Kamau (deceased), herein be heard denovo;d.Spent;e.That there is good and sufficient cause for review of the ex-parte order given on 22nd May 2023 on grounds of discovery of new and very important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him (her) at the time when the decree was passed- or the order made; andf.That the costs of this application be in the cause.

2. The application is premised on the grounds therein stated and on the supporting affidavit of Jane Muthoni Mwangi, the 2nd respondent/applicant, sworn on 10th August 2023.

3. The applicant’s case is that the applicant/respondent filed Mombasa MCSUCCMISC Cause E014 of 2023 in the Chief Magistrate’s Court, purporting to be a second wife of the deceased without her knowledge. She only learnt of the same when she tried to file a succession cause in Nairobi through her advocates. Her attempt failed to go through due to the fact that her husband’s death certificate had already been used on the CTS. The applicant/respondent was subsequently granted limited letters of administration ad litem. She petitioned the court for the revocation vide summons for revocation of grant dated 2nd March 2023, two months before the filing of this miscellaneous application by the applicant/respondent. Further, she also filed a suit at the High Court Nairobi on 15th March 2023, two months before the applicant/respondent mischievously filed a miscellaneous application Nairobi HCFMISC No. E056 of 2023 Jane Muthoni Mwangi v Hellen Wanjiru Kahiga seeking transfer of the succession cause to the High Court, Nairobi.

4. Further, the applicant /respondent filed the miscellaneous application herein without full disclosure to the court of the happenings above. The applicant/respondent’s advocate registered themselves as the respondent in the CTS so as to lock her and her advocates out of the proceedings.

5. She stated that her rights as the rightful widow of the deceased are being violated and continues to suffer a serious miscarriage of justice as she was not accorded a fair trial in contravention of Article 50 of the Constitution due to the deliberate and calculated actions of the applicant/respondent and her advocates. She argued that no prejudice would be occasioned to the applicant/respondent if the orders sought were granted.

6. In response, the 1st respondent filed a replying affidavit sworn on 2nd November 2023 by their associate advocate Naomi H. Kinuva. She stated that there was no mischief in filing the Mombasa HCFMISC No. E018 of 2023 seeking transfer of Mombasa CMSUCC E014 of 2023 to this court after it became evident that the lower court did not have the pecuniary jurisdiction to handle this matter. She deposed that the law allows the high court to transfer matters from the subordinate courts even without prior notice to the parties and proceed from where it was left off.

7. She stated that the application for revocation is still pending before this court, and since the court is seized of the matter through Mombasa HCFP & A No. E067 of 2023, it has jurisdiction to hear and determine the said application on merit. Therefore, the applicant has not suffered any prejudice with the transfer of the matter to this court as no adverse orders were issued against her.

8. She further stated that the firm was erroneously registered as 1st respondent during the registration of Mombasa HCFMISC No. E018 of 2023 on the CTS system and termed it as a clerical error. That the same could not have stopped the applicant from filing any documents thereon. She then urged the court to dismiss the application herein and let the parties proceed from where the matter had reached before the transfer was effected.

9. The application was canvassed by way of written submissions, with the applicant filing her submissions dated 13th September 2023 through her advocates Mbai Waweru Advocates.

10. Counsel relied on Articles 50 and 159(2)(a) of the Constitution of Kenya and submitted that the same grants every person the right to a fair hearing and that justice shall be done to all, irrespective of their status.

11. Counsel further relied on section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. She submitted that a court can only review orders on the following grounds:-a.There must be discovery of a new and important matter 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; orb.There was a mistake or error apparent on the face of the record; orc.There were other sufficient reasons; andd.the application must be made without undue delay.

12. On the first ground, counsel submitted that the applicant has demonstrated that she and her advocates were deliberately not made aware of the proceedings herein and thus could not participate and or produce the new and important matter or evidence that is crucial for the fair determination of this matter. Counsel submitted that the new and important evidence is the filing of the summons for revocation by the applicant two months before the filing of the miscellaneous application by the applicant/respondent; the existence of an ongoing suit in the High Court of Kenya at Nairobi being Nairobi HCFMISC No.E056 of 2023; Jane Muthoni Mwangi versus Hellen Wanjiru Kahiga filed two months before the filing of the miscellaneous application by the applicant/respondent; and that the applicant/respondent and her advocates were aware of the said proceedings but deliberately withheld the information from the court so as to fraudulently obtain orders in her favour.

13. On whether there were other sufficient reasons, counsel submitted that the applicant had demonstrated that she could not participate in these proceedings and was thus wrongfully deprived of an opportunity to be heard. The applicant has demonstrated that she only became aware of this suit after being served with the orders of the court on 5th July 2023.

14. On whether the application was filed without undue delay, counsel reiterated the applicant’s position and submitted that the applicant has demonstrated that the application herein was filed without undue delay.

15. Counsel relied on sections 3A and 1A of the Civil Procedure Act and urged the court to find that the application merited and allow the same as prayed.

16. On the other hand, the applicant/ respondent, through her advocates Muturi Gakuo & Kibara Advocates, filed her written submissions dated 2nd November 2023.

17. Counsel submitted that no new and important evidence had been adduced, demonstrating that this honourable court would have arrived at a different decision concerning the subordinate court’s lack of pecuniary jurisdiction in transferring the lower court matter. Counsel relied on the case ofAlpha Fine Foods Limited v Horeca Kenya Limited & 4 Others (2021) eKLR and James Bosire Machogu v John Kipkurui Chepkwony [2022] eKLR on the proposition that a review is not an appeal in disguise whereby an erroneous decision is reheard and corrected.

18. Further counsel relied on Section 18 of the Civil Procedure Act 2010 and submitted that the matter was rightfully transferred for want of jurisdiction as the law allows the High Court to transfer matters without notice to the parties. Thus the argument by the applicant that she did not have notice prior to the transfer is not a ground for review. She submitted that the transfer did not prejudice the applicant in any way, nor did the court issue any adverse orders against her.

19. Counsel urged the court to find that the application lacks merit, dismiss it with costs and allow parties to proceed with Mombasa HCFP&A No. E067 of 2023.

20. I have considered the application, the response therein, and the rival submissions by counsel, and the issue that emerges for determination is:-a.Whether orders for review should be issued.

21. Section 80 of the Civil Procedure Act provides;“Any person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit”.Order 45(1) of the Civil Procedure Rules,2010 provides: -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 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.”

22. The court, in its orders of 22nd May 2023, allowed the exparte application dated 5th May 2023 seeking transfer of Mombasa Chief Magistrate’s Court Succession No. E014 of 2023 to the High Court, Mombasa Family Division, for hearing and determination by a judge of competent jurisdiction. The court transferred the matter to the High Court Mombasa for hearing and determination, which orders are subject of this application.

23. The applicant seeks review of the orders of this court of 22nd May 2023 on the grounds that they were obtained fraudulently without full disclosure of the existence of summons for revocation and Nairobi HCFMISC No. E056 of 2023 Jane Muthoni Mwangi v Hellen Wanjiru Kahiga, which are still pending. The applicant argued that the applicant/respondent did not serve her with the application used to obtain the said orders and that the applicant’s/respondent’s advocate registered themselves as respondent, locking her and her advocates out of the proceedings.

24. The applicant, in paragraphs 11, 12, 13, 14, 15 and 16 of her supporting affidavit, stated that on receipt of the orders of the court transferring the trial court matter, her advocates filed a notice of appointment dated 5th July 2023, applied for certified proceedings which they have already obtained and that they proceeded to file a notice of preliminary objection and to seek a hearing date only to be informed that the file had been closed. The registry failed to give them a new case number to file the notice of preliminary objection, which resulted in the filing of the application herein under the miscellaneous application herein.

25. The applicant has termed the above reasons given for review as new and important evidence which, after the exercise of due diligence, was not within her knowledge or could not be produced by her at the time when the decree was passed or the order made.

26. The court, in the case of Alpha Fine Foods Limited v Horeca Kenya Limited & 4 others (supra) stated: -“Ordinarily, the expression 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 order was made would refer only to a discovery made since the order sought to be reviewed was passed. An applicant alleging the discovery of new and important evidence must demonstrate that he has discovered it since the passing of the order sought to be reviewed. In the instant application, the applicant claims to have injected capital to the tune of US 1. 5 million prior to the granting of the order sought to be reviewed. He is now claiming that he was not aware of the said evidence at the time of passing the order yet he claims he is the one who injected the capital. He claims he did not have the minutes. However, he had the information, so, nothing prevented him from availing the information to the court by way of a sworn affidavit. To pass the test, it must be demonstrated that the applicant was prevented by circumstances beyond his control from tendering the evidence to the court at the time when the judgment sought to be reviewed was delivered against him. The instant application cannot pass this test. If the information was with the liquidator as alleged, nothing prevented the applicant from procuring such evidence either by way of witness summons or by a sworn affidavit. To satisfy the test under the rules, an applicant must demonstrate discovery of new evidence which he could not procure at the time the application was heard despite exercise of due care and diligence. Had the applicant exercised due care and diligence, certainly, he could have procured the evidence. The applicant has failed this crucial test.”

27. Looking at this matter objectively, it is my view that the applicant herein had the information within her knowledge, and nothing prevented her from applying for setting aside of the said orders or appealing against the same. It’s also not clear how the erroneous registration of the applicant/respondent advocate has locked her out of the proceedings.

28. Further the respondent argued that this court has the power to transfer a matter suo moto under Section 18 of this Civil Procedure Act which provides;1. On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—a.transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; orb.withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—i.try or dispose of the same; orii.transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; oriii.retransfer the same for trial or disposal to the court from which it was withdrawn.2. Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

29. In this case, it is the applicant/respondent who sought the transfer and thus ought to have notified the applicant herein. The applicant/respondent did not tender any proof of service. However, I must note that the Notice of Motion dated 5th March 2023 was filed exparte, following which the court exercised its discretion in the interest of justice and transferred the suit. Accordingly, it is my view that if the applicant was aggrieved by the said orders she ought to have applied for setting aside of the same or in the alternative appeal, as review cannot be an appeal in disguise whereby an erroneous decision is reheard and corrected. I am guided by the case of Zablon Mokua versus Solomon M. Choti & 3 others [2016] eKLR, where Judge W. A Okwany stated: -“However, given that a review application is not an appeal and neither must it be allowed to be an appeal in disguise where the merit is revisited, ‘sufficient reason’ ought to include, in my view, the statutory grounds for review as outlined in the Civil Procedure Rules. That ought to be the starting point and a fine guideline.”

30. From the foregoing it is clear that I have not found merit in the application. The same is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 1STDAY OF DECEMBER 2023 VIA MICROSOFT TEAMSGREGORY MUTAIJUDGEIn the presence of:-Ms. Luchemo for the Respondent/Applicant;Ms. Kinuva for the Applicant/Respondent; andArthur – Court Assistant.