[2022] KEHC 9795 (KLR)

In re Estate of Wari Baranja (Deceased) (Succession Cause 106 of 2012) [2022] KEHC 9795 (KLR) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9795 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 106 of 2012

LM Njuguna, J

July 20, 2022

Between

James Kariuki Njokonia & Others

Applicant

and

Tito Wari

Respondent

Judgment

1The matter before this court is the chamber summons dated 07. 12. 2021 in which the applicants have sought the following orders;i)Spenti)Spent.iii)That the Honourable Court be pleased to review the judgment and decree of this Honourable Court delivered on 17. 11. 2021 and make a substitute order that the estate of the deceased comprising of LR No. Ngandori/Nguvio/ 730 be shared equally with 3 acres being inherited by the petitioner and 3 acres to the protestors.

2The application is premised on the grounds on its face and further supported by the affidavit sworn by Patrick Nyaga Njokonia. The applicant’s case is that on November 17, 2021, this court delivered a judgment in favour of the petitioner/respondent. That under the said judgment the court adopted the petitioner’s proposed mode of distribution of the deceased’ estate and that there was an error apparent on the face of the record given that LR No. Ngandori/ Nguvio/779 never belonged to the deceased herein. It is their case that the petitioner misled the court given that LR No. Ngandori/Nguvio/779 was wholly owned by the brother of the deceased herein and at no time did it belong to the deceased.

3In his affidavit, Patrick Nyaga Njokonia deposed that he is aggrieved by the judgment of the Honourable court delivered on 17. 11. 2021 in that there is an error apparent on the face of the record as LR No. Ngandori/Nguvio/779 was never registered in the name of the deceased herein. That the petitioner herein misled the court in his submissions that the deceased owned LR No. Ngandori/Nguvio/779 measuring 3 acres but the land was wholly owned by the brother of the deceased one Kaweru Baranja who transferred the same to Wilson Mbogo Baranja. It was deposed that the applicants stand to suffer irreparable loss if the orders sought herein are not granted as they will be deprived of their rightful share of the estate of the deceased.

4The respondent filed a replying affidavit sworn on 10. 05. 2022 in which he deposed that the applicants have not satisfied the requirements for seeking review orders as sought. He deposed that the registered proprietor of LR No. Ngandori/Nguvio/779 was Kaweru Baranja who was the only brother to the intestate herein and since he died without any child, the intestate was entitled to the said land being the only surviving brother. That under some unclear circumstances, one of the brothers to the applicant managed to have the said land registered in his names purporting to be correction of names which was not the case.

5It was further deposed that contrary to the averment that the same was done through transfer, the same was done unprocedurally and fraudulently; that the arbitration through the area chief clearly shows that LR No. Ngandori/Nguvio/779 ought to have been shared by the two sons of the intestate herein. That the court did not distribute LR No. Ngandori/Nguvio/779 but only put into consideration what the applicant’s house had benefitted from the intestate during his lifetime. In the end, this court was urged to dismiss the application herein as the same was an afterthought.

6The application was disposed off by way of written submissions but only the applicants complied with the directions.

7They submitted that the application has been brought before this court for the reason that there was an error apparent on the face of the record as LR No. Ngandori/Nguvio/779 which the court took into consideration in distributing the estate never belonged and was never registered in the name of the deceased herein. Reference was made to Order 45 Rule 1 of the Civil Procedure Rules and further to In re Estate of Oliokampai Sarapae Sanguti (Deceased) [2019] eKLR where the court cited the case of Muyodi v Industrial and Commercial Development Corporation & another [2006] 1 EA 243.

8It was further submitted that the respondent misled the court by stating that the deceased herein owned LR No. Ngandori/Nguvio/779. That the said parcel of land initially belonged to Kaweru Baranja, who is the brother to the deceased herein and was then transferred to one Wilson Mbogo Baranja, the brother to the protestor. They proceeded to state that the parcel has never been registered in the name of the deceased and it was impossible for the deceased to transfer or gift land that he never owned. That the allegation that the deceased was entitled to LR No. Ngandori/Nguvio/779 by virtue of being the only survivor of his brother Kaweru Baranja is false and is only meant to mislead the court and further that, the applicant has since realized that in fact, Wilson Mbogo Baranja was never given land LR No. Ngandori/Nguvio/779. It was submitted that the respondent has introduced new evidence that was not availed to the court prior to the delivery of the ruling by this court. This court therefore has been urged to review its order since failure to do so, the applicants will suffer irreparable loss.

9The remedy of review is provided for under Order 45 Rule 1 of the Civil Procedure Ruleswhich states;“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 reasonable delay”.

10The grounds for review are;a)Discovery of new and important matter of evidence which was not within the knowledge of the applicant.b)An error apparent on the face of the record.c)Any sufficient cause.

11As indicated above, a review is permissible on the grounds of discovery by the applicant of some new and important matter or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order was passed; the underlying objective of this provision is neither to enable the court to write a second judgment nor to give a second innings to the party who has lost the case because of his negligence or indifference. Therefore, a party seeking a review must show that there was no remiss on his part in adducing all possible evidence at the trial.

12Where an applicant in an application for review seeks to rely on the ground that there is discovery of new and important evidence, one has to strictly prove the same. In the case of Stephen Wanyoike Kinuthia (suing on behalf of John Kinuthia Marega (deceased) v Kariuki Marega & another [2018] eKLR the Court of Appeal stated as follows:“We emphasize that an application based on the ground of discovery of new and important matter or evidence will not be granted without strict proof of such allegation.”

13In the same breadth, the Court of Appeal in the case of Rose Kaiza v Angelo Mpanju Kaiza [2009] eKLR held that not every new fact will qualify for interference of the judgment.

14On whether there was an error apparent on the face of record, in Muyodi v Industrial and Commercial Development Corporation & another EALR [2006] 1 EA 213 and cited in Mohamed Mungai v Ford Kenya Election, and Nominations Board and another, Nairobi High Court Judicial Review Misc. Application No. 53 of 2013, [2013] KEHC 5225 (KLR) the court inter alia went on to state;“For one to succeed in having an order reviewed for mistake or error apparent on the record, he must demonstrate that the order contains a mistake that is there for the whole world to see. It is not enough for an applicant to say that he is dissatisfied with the decision or that the same is wrong. Such opinions ought to be the subject of an appeal.The applicant before us has not established that there is an error or mistake in decision he has asked us to review. He has not even pointed out what in his opinion is the error or mistake in that decision. He has just told us to review the court's decision. That is not good enough, his dissatisfaction with the decision aforesaid notwithstanding. We therefore find no reason for reviewing the decision on the said ground.”

15Further, in Attorney General & others v Boniface Byanyima, HCMA No 1789 of 2000 the court citing Levi Outa v Uganda Transport Company [1995] HCB 340, held that the expression “mistake or error apparent on the face of record” refers to an evident error which does not require extraneous matter to show its incorrectness. It is an error so manifest and clear that no court would permit such an error to remain on the record. It may be an error of law, but law must be definite and capable of ascertainment.

16The 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 either 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 the purpose of Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Act. Put differently, an order, decision, or judgment cannot be reviewed 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 on appeal over its judgment/decision.

17In this case, the applicants have contended there was an error apparent on the record in the judgment delivered by the court on the 17. 11. 2021. The reason for this was that land parcel number Ngandori/Nguvio/779 which the court took into consideration in distributing the estate of the deceased herein never belonged and was never registered in the name of the deceased.

18In his replying affidavit the respondent avers that the correct position is that the registered proprietor of Ngandori/ Nguvio/779 was Kameru Baranja who was the only brother to the intestate herein and since he died without any child, the intestate was entitled to the said land being the only surviving brother.

1It was also the respondent’s contention that under unclear circumstances, one of the brothers to the applicant herein managed to have the said land registered in his names purporting to be a correction of names which was not the case, and that all through, the petitioner knew the land ought to have been inherited by his father since he was the only brother to the original registered proprietor.

20In his replying affidavit, the respondent has annexed a greencard for land parcel number Ngandori/Nguvio/779 marked as annexture “JW1”. The same shows that the said land has never been registered in the name of the deceased herein, contrary to the submissions made by the petitioners when the court heard the summons for confirmation of the grant dated March 2, 2020.

21In the circumstances, I concur with the applicants/protestors that there is an error apparent on the face of the record in the judgment delivered on the November 17, 2021.

22In the end, the chamber summons dated December 7, 2021 is hereby allowed and prayer 3 of the same is granted.

23Each party to bear its own costs of the summons.

24. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 20TH DAY OF JULY, 2022. L. NJUGUNAJUDGE………………………………..for the Applicant………………………………..for the Respondent