[2018] KEHC 3813 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 203 OF 2004

In The Matter of the Estate of the William Mbogori Kathiama (Deceased)

KIRIMI MBORI................................................PETITIONER

Versus

CHARITY KAINDA....................................1ST OBJECTOR

CATHERINE KAREA................................2ND OBJECTOR

JUDGMENT

[1] This decision relates to an application dated 6th June 2018 which is made by way of summons and expressed to be brought under Rules 63 (1) and 73 of the Probate and Administration CAP 160 of the Laws of Kenya and Order 45 Rule 1 of the CPR and all enabling provisions of the law. The significant order sought by the applicant is of /rectification of grant to the extent that the petitioner surrenders and transfers the entire share in LR ABOTHUGUCHI/GITHONGO/1352 measuring 2 ½ Acres for distribution among the other beneficiaries in exchange for 2 ½ Acres to be hived out of LR ABOTHUGUCHI/GITHONGO/313 among other orders.

[2] The grounds upon which the summons is premised are set out in the application and affidavit sworn by Kirimi Mbori on 6th June 2018. It has been deposed that during the lifetime of his father and the deceased (his grandfather), the deceased transferred LR ABOTHUGUCHI/GITHONGO/1352to his father. But his father is buried on LR. ABOTHUGUCHI/ GITHONGO/313 and thus, the cradle of their family. In addition, he stated that he has all his life lived on LR ABOTHUGUCHI/GITHONGO/313 and has extensively developed it. None of the objectors and or their successors lives on or depend on the deceased’s estate. Their interest is to get the deceased’s estate and sell. He averred that the deceased in the presence of seven elders made his last wishes known (‘KM 1 a & b’). This was not brought to the attention of the court as his then advocate failed to prosecute the cause as he was supposed to; this is likely to occasion him great prejudice.

[3] The application was opposed by Catherine Karea. In her replying affidavit sworn on 17th July 2018, she deposed that the petitioner has no personal developments on LR ABOTHUGUCHI/GITHONGO/313 since the house he occupies was built by her for her father, the deceased. The said developments belong to the deceased. The applicant is pretentiously valuing the said developments and passing off as his properties- something she calls deceptive and dishonest. According to her, the petitioner has never lived all his life on the said parcel since he was raised by their late sister Jennifer Mukami Mutea from the death of his father. She averred that the allegation that the deceased left a will is an afterthought since it never came up during the 14 years this matter has been in court. The applicant’s application is an appeal against the judgment delivered on 23rd May 2018 through the back door and should not be entertained. The applicant’s application is unmerited and an abuse of the court process; she declared.

Submissions

[4] This matter was canvassed by way of written submissions. The petitioner submitted that he has every attachment to land parcel No. 313 and should be allowed to exchange his share with the said parcel of land. On the other hand, the objector submitted and reiterated that this court has already delivered the judgment in this matter and should resist invitation to endless litigation. She took the view that the applicant had an able counsel on record. The petitioner filed the petition in person and stated that the deceased was intestate. It is dishonest for him to now say that a will existed. He is taken to have had knowledge of any will and ought to have produced it in court through appropriate pleadings provided in law. Either way, she argued that the will does not meet the legal threshold. Thus, the application ought to be dismissed.

ANALYSIS AND DETERMINATION

[5] The application before me is for review of judgment. Rule 63 (1) of the Probate and Administration Rules permits application of certain orders in the Civil procedure Rules including Order on Review so far as is relevant to the proceedings under the Law of Succession Act. The rule provides that:-

“Save as in the Act or in these Rules otherwise provided, and 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, X1, XV, XV111, XXV,XL1V, and XL1X, together with the High Court (Practice and Procedure) Rules, shall apply so far as relevant to proceedings under these Rules.”

[6] Accordingly, in the vein of law under Order 45 Rule 1 of Civil Procedure Rules the applicant must show:

1. A 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

2. Some mistake or error apparent on the face of the record, or

3. Any other sufficient reason that a review of the decree or order should be made; and

4. That he has applied without unreasonable delay.”

[7] The judgment subject of review application was delivered on 23rd May 2018. The application for review was made in June 2018 and may be timely. But, does it meet the legal threshold? The applicant brings this application and is seeking to exchange the share allocated to him with land parcel No. 313 on several grounds. He also stated that the deceased left behind a will setting out how his estate ought to be distributed. The will was not brought to the attention of the court. Looking at the provisions of Section 11 of CAP 160, I am particularly perturbed by the fact that the alleged will presented by the petitioner, that is KM 1 a & b, bears no mark that the deceased attested to it. That is not all; why did the petitioner who filed these proceedings fail to mention, let alone produce the will in court? Only the Petitioner knows why he has decided to talk of the will now. That notwithstanding, I should state that the alleged will favours the petitioner who is a grandchild of the deceased, and disinherits the children of the deceased. Such act is ominous and highly suspect. He has not shown that the will is a 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. He cannot blame his legal counsel as advocates act on instructions given by the client. The responsibility of giving proper instructions to his legal counsel squarely rests with him. He has not shown any erro or mistake apparent in the record, or any other sufficient reason to warrant a review of judgment herein.

[8] Before I close I find that the allegations that the petitioner has always lived on or has developed or that his father is buried on land parcel No.313 is not discovery of new matters in the sense of the law. All issues being raised are not apt for an application for review. I agree with the Objectors that the petitioner has been artful in finding avenues to disadvantage the daughters of the deceased. It should be noted that daughters and sons of the deceased have equal rights to inherit the estate of their father and that right is not diminished because of gender.

[9] The upshot of the foregoing analysis is that the application for review is unmeritorious. By the judgment delivered on 23rd May 2018, this court is functus offico. If the petitioner is unhappy with it he has the right to appeal. His invitation amounts to asking the court to sit on appeal on its own judgment. Therefore, I dismiss the application dated 6th June 2018 with costs to the Respondents..

Dated, signed and delivered in open court at Meru this 4th day of October, 2018

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F. GIKONYO

JUDGE

In the presence of:

Mr. Kithinji advocate for Objector

M/s. Muna advocate for Mr. Mokua advocate for Petitioner

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F. GIKONYO

JUDGE