[2010] KEHC 428 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

SUCCESSION CAUSE NO. 294 OF 2001

IN THE MATTER OF THE ESTATE OF GABRIEL JAMES OCHIENG KOUNAH (DECEASED)

JANE PAMELA ANYANGO KOUNAH.....................................................................................1ST PETITIONER

MARGARET AUMA OUNA........................................................................................................2ND PETITIONER

VERSUS

JENNIFER NJOKI OCHIENG.................................................................................................1ST RESPONDENT

JAMES KOUNAH OCHIENG................................................................................................2ND RESPONDENT

RULING

By an application brought by way of a Notice of Motion dated 10th June 2010, the 1st Administrator of the estate of the late James Ochieng Kounah sought four prayers, namely-

(1)THAT due to the urgency of this matter service herein be dispensed with in the first instance and the application be heard exparte.

(2) THAT pending hearing and determination of this application this Honourable Court be pleased to stay the execution of the orders of this court comprised in its ruling by Hon. Justice L. Kimaru Judge dated 14th November, 2006.

(3) THAT this Honourable court be pleased to review, vary and or set aside the said orders.

(4) THAT the cost of this application be provided for.

and the grounds thereon again, namely-

(i)THAT one of the beneficiaries who was been left out and is the adopted son to the deceased.

(ii) THAT it is fair and just that B.O.K who is a beneficiary to the deceased estate be included as a beneficiary and fair distribution of the estate be done.

(iii) THAT the deceased used to pay for all the necessities including school fees for the said B.O.K and he actually accepted him as his son at the time he was marrying his mother who is also a beneficiary herein.

The application was urged before me on 24th June 2010. Mrs Ndeda appeared for the applicant while Miss Kamar opposed the application on behalf of the 2nd Administrator, James Kounah Ochieng.

I granted the 2nd prayer in the motion, and Mr. James Kounah Ochieng, the 2nd Administrator was cross-examined by Mrs Ndeda and re-examined by Miss Kamar on his Replying Affidavit sworn on 21st June 2010.

As may be noted from the prayers, the entire application revolves round the question whether one B.O, the son of the deceased's 2nd wife, Jane Pamela Anyango Kounah was an adopted son of the late James Ochieng Kounah.

In his Ruling delivered on 14th November 2006, my learned and noble brother the Hon. Mr. Justice L. Kimaru after analyzing the pleadings and evidence before him excluded the said B.O from among the list of beneficiaries of the deceased's estate. At p.5 of his ruling Justice Kimaru observed -

"No evidence was placed before this court to suggest that B. O.K, Margaret Auma Ouna and Charles Aketch Ouna were dependants of the estate of the deceased. I therefore declare that they are not dependants of the estate of the deceased subject to the caveat that this court would be amenable to reconsider the issue of their dependency if further evidence is placed before this court."

That finding and observation is the basis of the Replying Affidavit by Jannette Hellen Atieno sworn on 10th June 2010 to the Summons for Confirmation of the Grant dated 23rd November 2007, and not the motion for review of the court's ruling on 14th November 2006. In effect therefore there is no Supporting Affidavit for the application for review of the court's ruling. Even if the court were to take a liberal approach, and accepted the 2nd Administrator's Affidavit as a Supporting Affidavit, the principles for review of a decree or order of the court are well laid out under Order XLIV rule 1(1) of the Civil Procedure Rules, and have been reiterated in many cases-

(a)discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by the applicant at the time when the decree was passed or the order made,

(b) mistake or error on the face of the record,

(c) some other sufficient reason,

(d) the application be made without unreasonable delay.

The Applicant says in her Replying Affidavit to the application for confirmation of the grant -

"4. THAT B.O.K is son to Jane Pamela Anyango Kounah the 2nd Widow of the deceased and at the time the deceased married the mother the boy was only … years and the deceased took up all the responsibilities of B.O.K as his son until his death on 14/1/2001. Attached is affidavit of Jane Pamela Anyango Kounah marked as "JHA1".

Applying the first principle for review of decrees or orders, this averment is not an important matter or evidence which was not previously available or which with the exercise of due diligence would not have been produced by the applicant at the time the decree was passed or made. On the contrary incidents of adoption would in my view include formal adoption or incidents of adoption such as taking the child of one's wife by another man to live with, regular visitation and residence with the adopting father.

Paragraph 4, 5, 7, 10 and 11 of the Replying Affidavit of James Kounah Ochieng, the other Administrator of the deceased's estate, clearly state that B.O was not an adopted son of the deceased, the deceased did not acknowledge him as such, or at all, that a one off school fees payment made back in 1997 cannot be regarded or construed to be maintenance of the said B.O by the deceased, who also never took him as his son as throughout the period during which the deceased and Jane Pamela Anyango were cohabiting, the said B. O was living with his aunt known as Elizabeth at Section 58, Nakuru, and the mother had separated with the deceased, and had moved to the U.S.A. and B never resided with the deceased.

There is no rebuttal by way of a Replying Affidavit by Janette Hellen Atieno to the Replying Affidavit of James Kounah Ochieng or to these specific averments. There is also no allegation of mistake on the face of the record or other sufficient cause for review.

Hon. Mr. Justice Kimaru made his ruling on 14th November 2006. The application herein was made on 11th June 2010 some 3 years and 7 months after the Ruling, and some 2 years and 7 months after the application for confirmation of the grant(made on 23rd November 2007). It is thus clear that the application for review of the Ruling by Justice Kimaru was made in breach of all the principles of review, including the principle that the application for review be made without undue or unreasonable delay.

There are other reasons why the application herein should fail. The principal reason is that the question of dependency was determined in the learned Judge's ruling. The issue here is subject to the principle ofres judicata. It has been litigated between the same parties, and determined by a competent court.

There are also procedural issues and lack of proper form which is not necessary or vital for me to go into as I have already determined that the application is not sustainable for failure to meet the test of review under XLIV rule(1)(1) of the Civil Procedure Rules, and lastly, though Order XLIV of the Civil Procedure Rules is applied to matters of succession by rule 63 of the Probate and Administration Rules, the Law of Succession Act(Cap. 160, Laws of Kenya) is a complete code on the subject of succession, and neither Section 80, nor Order LI, rule 1, of the Civil Procedure Rules has any application to succession matters. The invocation of those provisions is therefore incompetent.

For all those reasons, I find the application dated 10th June 2010 has no merit at all and dismiss it with costs to the Respondent.

There shall be orders accordingly.

Dated, delivered and signed at Nakuru this 22nd day of October 2010

M. J. ANYARA EMUKULE

JUDGE