[2011] KEHC 378 (KLR)
The court found that the applicant failed to demonstrate any new matter or error apparent on the face of the record to justify review of the order made on 11th February 2011. The court emphasized that review is only available on specific grounds, such as discovery of new evidence or an error apparent on the record,...
Source-derived case information.
- Citation
- [2011] KEHC 378 (KLR)
- Parties
- Applicant: Peter Gichuru Ngari; Respondent: William Ngatia Ngare
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 68 of 1988
- Procedural Posture
- Succession Cause / Ruling on Application for Review of Interlocutory Orders
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Review of Court Orders, Status Quo Orders, Succession Disputes, Confirmation of Grant
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Gichuru Ngari
Applicant
William Ngatia Ngare
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review of Interlocutory Orders
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for review of the court order made on 11th February 2011.
- 2 Whether there is an error apparent on the face of the record justifying review.
- 3 Whether the application for review is a proper substitute for an appeal in the circumstances.
Ratio Decidendi
The court found that the applicant failed to demonstrate any new matter or error apparent on the face of the record to justify review of the order made on 11th February 2011. The court emphasized that review is only available on specific grounds, such as discovery of new evidence or an error apparent on the record, neither of which was established by the applicant. The court further noted that if the applicant was dissatisfied with the ruling, the appropriate remedy would be to file an appeal rather than seek review. Consequently, the application for review was dismissed for lack of merit.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for review is dismissed for lack of merit.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
SUCCESSION CAUSE NO. 68 OF 1988
IN THE MATTER OF THE ESTATE OF SOLOMON NGARI – DECEASED
PETER GICHURU NGARE……………......................................................….……....APPLICANT
VERSUS
WILLIAM NGATIA NGARE……….………….......................…………………..…RESPONDENT
RULING
Peter Gichuru Ngari, the Applicant herein, is before this Court, seeking to have the orders given on 11th February 2011 to be set aside by review and to be substituted with an order maintaining the status quo in respect of L.R. NO. RUGURU/KARUTHI/418 pending the hearing and determination of the cause vide the Summons General dated 18th February 2011. The Summons is supported by the affidavit of the Applicant. William Ngatia Ngare, filed a replying affidavit to oppose the Summons.
The Applicant avers that the Respondent had applied to have the Applicant restrained from utilizing 3. 1 acres of L.R. NO. RUGURU/KARUTHI/418. It is said that there were averments in the Respondent’s affidavit that the Applicant was exclusively utilizing the land in dispute and that there was no evidence from one Ronald Kariuki that he was entitled to share the land with the Applicant. The Applicant fears that the said Ronald Kariuki may try to interfere with the status quo by entering the land. The applicant is of the opinion that this is an error apparent on the face of record. The Respondent urged this court to dismiss the summons on the basis that there are no new matters material to this case to warrant the order for review. The respondent claimed that the Applicant does not intend to respect the court order of 11th February 2011 by purporting to circumvent the same using this summons.
Having considered the material placed before me plus the rival submissions, it is obvious that the applicant is not happy with this Court’s order of 11th February 2011 where he was restrained from utilizing 3. 1 acres in L.R. NO. RUGURU/KARUTHI/418 pending hearing and determination of this cause. In an application for review, the Applicant is bound to show the new matter which was not within the knowledge of the Applicant after due diligence at the time of making the decision. I have carefully looked at the ruling and I am convinced there is no error apparent on record. If the Applicant was dissatisfied with the ruling of 11th February 2011, he can as well appeal instead of engaging this Court with an application for review. This Court directed the parties to expedite the hearing of the summons for confirmation and the protest to put to an end the persistent wrangles.
In the end, the Motion is dismissed with costs to the Respondent for lack of merit.
Dated and delivered at Nyeri this 21st day of October 2011.
J. K. SERGON
JUDGE
In open Court in the presence of Mr. Kamwenji for the Petitioner, Kimunya holding brief Mwai for the 2nd Respondent and Wachira for the Applicant.