[2022] KEHC 1569 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

MISCELLANEOUS APPLICATION NUMBER 14 OF 2013

IN THE MATTER OF THE ESTATE OF ZIPPORAH NJOKI GITHINJI (DECEASED)

PETER MUGO GITHINJI...........................................................................................APPLICANT

VERSUS

FARIS NYAMBURA MBUTHIA...........................................................................RESPONDENT

R U L I N G

1. Zipporah Njoki Githinji died on 16th July 2005. The Grant of Letters of Administration as made to Peter Mugo Githinji on 24th April 2012. A certificate of Confirmation of Grant was made on 9th October 2012 whereby the beneficiaries;

i. Peter Mugo Githinji

ii. Joseph Mwichingi Githinji

iii. James Mbugua Githinji

iv. Susan Waithera Gachenga

Shared equally the estate, Parcel Number 546 Piave Settlement Scheme.

2. On 24th January 2013, Faris Nyambura Mbuthia filed Summons for Revocation of Grant and/annulment of Grant on the ground that the deceased was her mother in law and had distributed her estate before she died. The matter was heard by A. K. Ndung’u J and he delivered his Ruling on 17th July 2019. He made the following order;

“With the result that the protest herein is partially successful. I allow the same and make the following orders;

1. Protest is partially successful.

2. The estate of the deceased which comprises of parcel of land Nakuru/Piave/546 be distributed as follows;

1. Faris Nyambura Mbuthia (for the estate of Mbuthia Githinji) ¾ acres.

2. Peter Mugo ¾ acre

3. Joseph Mwicigi Githinji ¾ acre

3. Susan Waithera ¾ acre

5. James Mbugua ¾ acre

3. Each party to bear its own costs.”

3. The Petitioner filed Notice of Motion dated 25th July 2019 seeking orders of review of the Judge’s orders on the ground that there was new evidence. That the late Pharis Mbuthia was given plot number 412 whole share and had no share in Nakuru/Piave/546. He annexed to his affidavit a document he claimed was written by the deceased where she distributed Nakuru/Piave/546 to the four (4) beneficiaries one (1) acre each, and gave Pharis Mbuthia Plot 412, Margaret Wanjiku plot 393 and Pauline Njeri Plot 604. He deponed in his Supporting Affidavit that this information was not available to the court at the hearing.

4. He referred the court to paragraph 25 of the Ruling which states;

“The petitioner has not laid evidence before court to show any advancement or other gift to Mbuthia Githinji, Margaret Wanjiku and Pauline Njeri during the lifetime of the deceased. A court of law must at all times be guided by cogent evidence not conjecture of unsubstantiated statements by a witness(es).”

5. In her response the respondent stated that the application had no merit as all issues had been dealt with conclusively by the court. That there was no error on the face of the record to warrant review. That the petitioner/applicant had brought an appeal before the same court.

6. The matter was set for hearing on 5th May 2021 by consent. The court did not sit, and matter was fixed for mention on 3rd June 2021. The protestor did not appear nor did counsel. Matter was fixed for hearing on 25th October 2021. Counsel for the protestor was served, neither the protestor nor counsel appeared. The matter was fixed for Ruling on 20th January 2022 but due to pressure of work the same was not ready.

7. The question for determination is whether the application for review is tenable. It is now trite that under Rule 63 of the P & A Rules, order 45 of the Civil Procedure Rules, on review, applies to Succession Matters. See Re Estate of Makerer Arap Birir (deceased) [2018] eKLR among others.

8. It is the applicant’s position that there is new evidence which this court ought to look at, and this evidence is the written document dated 24th September 1989.

9. Order 45 provides that there ought to be;

“…. 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 the decree was passed or order made. Or on account of some mistake or error on the face of the record, or for any other sufficient reason…”

10. The applicant seeks this review stating that there is an error at paragraph 25 of the Ruling that was delivered by Ndung’u J and he has new evidence. Paragraph 25 as recorded simply states the fact that the applicant did not place any documentary evidence before the court then. That is a fact. I have perused the record, and his testimony. He simply stated before the Judge that there was some writing by the deceased on distribution, but he did not produce any documentary evidence. If he had produced that documentary evidence and the learned judge had made that statement of fact, there would be an error on the face of the record, but in this case no such evidence was produced. Secondly, why did he not produce this evidence before the trial judge? What he alludes to is not new evidence/new discovery is something he was well aware of all the time; he was aware of the existence of this evidence but for reasons unexplained in his affidavit he did not produce it. He has not given any explanation as to why this piece of evidence was not produced then, and wat due diligence he did to try and get and failed at the time of the hearing. See Dubai Bank K Limited vs Kwanza Estates Limited [2015] eKLRon the proposition that a party must demonstrate due diligence taken to get the evidence before the trial.

11. The applicant is required to strictly prove the discovery of new and important matter or evidence. See Stephen Wanyoike Kinuthia (suing on behalf of John Kinuthia Maregia (deceased) vs Kariuki Marega & Another [2018] eKLR. No such proof has been offered, save for the photocopy of a document in the Kikuyu Language, not translated, and whose authenticity the court would have to delve into, yet, according to the applicant, the evidence was available to the applicant at the hearing of the matter before Hon. Justice Ndung’u.

12. In the circumstances I find that the order for review sought by the applicant is not available. The application is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF MARCH 2022.

MUMBUA T MATHEKA

JUDGE

In the presence of:-

Edna Court Assistant

R. M. Machage & Co. Advocates

Peter Mugo Githinji