[2022] KEHC 597 (KLR)

In re Estate of Wario Guracha Dambi (Deceased) (Succession Cause E002 of 2021) [2022] KEHC 597 (KLR) (15 June 2022) (Ruling)

Neutral citation: [2022] KEHC 597 (KLR)

Republic of Kenya

In the High Court at Marsabit

Succession Cause E002 of 2021

JN Njagi, J

June 15, 2022

Between

Habiba Wario Guracha

1st Respondent

Safia Wario Guracha

2nd Respondent

Asha Wario Guracha

3rd Respondent

Ambaro Wario Guracha

4th Respondent

and

Denge Wario Guracha

Applicant

(Being an application for review of the court`s ruling delivered on 8th July 2021)

Ruling

1. The applicant has filed an application dated 29th July 2021 seeking that this court reviews and/or varies its ruling delivered on 8th July 2021 on the ground that there is new evidence available concerning the matter that was not available when the ruling was delivered. That the court in its said ruling did not consider the aspect of failure to gazette Succession Petition No.E003 of 2021 by the Kadhi`s Court in the Kenya Gazette is a vital requirement in a succession cause. That the applicant has already expressed his dissatisfaction with the Kadhi`s court and the secretive filing of documents. That the applicant wants the court to reconsider the issue of jurisdiction of the Kadhi`s Court in terms of pecuniary jurisdiction.

2. The application was opposed by the respondents through the replying affidavit of Habiba Wario, the first respondent, wherein she deposes that the court is functus officio over the matter as it has dispensed with the subject matter. That the application is without merit for the reason that the Kadhi`s Court is not subject to the procedures of the Law of Succession Act, Cap 160 by virtue of section 2(3) of the very Act. That by challenging the court`s ruling based on failure to gazette the succession petition is inviting the court to introduce a law that neither the constitution nor parliament has made available.

3. I have considered the grounds in support of the application and the grounds in opposition thereto. The application is made under the provisions of sections 1A, 1B, 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.

4. Rule 63 of the Probate & Administration Rules stipulates the rules of the Civil Procedure Act that are applicable in succession matters among them being Order 45 of the Civil Procedure Rules. Sections 1A, 1B and 3A of the Civil Procedure Act are not included therein. The application therefore cannot be granted under the mentioned provisions of the Civil Procedure Act since they are not applicable under Rule 63 of the P & A Rules. The application can only be considered under the provisions of Order 45 of the Civil Procedure Rules.

5. Order 45 of the Civil Procedure Act provides 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; or(b)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.”

6. The above means that an application for review can be made on the basis of:(1)Discovery of new and important matter or evidence.(2)Mistake or error apparent on the face of the record.(3)Any sufficient cause.See the Court of Appeal decision in Muyodi –vs- Industrial & Commercial Development Corporation & Another(2006) 1EA 243.

7. In the case of Turbo Highway Eldoret Limited -vs-Synergy Industrial Credit Limited (2016) eKLRSewe J. cited the case of Rose Kaiza – vs – Angelo Mpanjuiza(2009) eKLRwhere the Court of Appeal considered an application for review on the ground of new evidence and held that:-“Applications on this ground must be treated with great caution and as required by r 4(2) (b) the court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.”

8. The application herein is based on the ground that the court in its ruling delivered on 8th July 2021 failed to consider that gazettement of a succession cause filed at the Kadhi`s Court is a vital requirement in the cause. The court in the said ruling did not make a determination on the issue though the applicant had raised it as one of the grounds in support of his application.

9. A review can 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 however be self-evident, as was held in the case of National Bank of Kenya Limited v Ndungu Njau [1997] eKLR that:-“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 provision of law cannot be a ground for review.

10. In the application dated 15th March 2021 the applicant contended that the Kadhi`s court had issued orders without the grant being issued and gazetted in the Kenya Gazette. The issue on whether or not matters filed at the Kadhi`s Court require to be gazetted before a grant is issued is therefore not a new issue in this matter since the same was raised in the previous application but the court did not make a determination on the issue. In my view it is not a ground for review where the court fails to consider an issue that has been placed before it. The issue can only be the subject of an appeal and not review. In any case the applicant herein has not referred the court to the law under the Kadhi`s Court Act that requires that succession matters filed at the Kadhi`s Court require to be gazettted in the Kenya Gazette before a grant is issued.

11. The applicant was also seeking that the court re-considers the issue of pecuniary jurisdiction of the Kadhi’s court. The court in its ruling dated 8th July 2021 dealt with the issue of pecuniary jurisdiction of the Kadhi`s court and was categorical that-“….the Kadhi`s Court is not limited in monetary terms or by the value of the estate property.”

12. The applicant seems not to be satisfied with the said holding and deplores the court to reconsider the issue. He has however not shown that there is new evidence in the matter that was not in his possession when the application was made. There is then no basis for review of the court`s order on pecuniary jurisdiction of the Kadhi`s Court.

13. In view of the foregoing, I do not find merit in the application and the same is dismissed with costs to the respondents.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 15TH DAY OF JUNE 2022. J.N. NJAGIJUDGEIn the presence of:Mr. Nyenyire for ApplicantMr. Behailu for RespondentsApplicant:- PresentRespondents:- 3rd PresentCourt Assistant:- Present30 days Right of Appeal.