[2022] KEHC 522 (KLR)

Meitiakini v Meitiakimi & another (Succession Cause 1036 of 1994) [2022] KEHC 522 (KLR) (Family) (9 March 2022) (Ruling)

Neutral citation: [2022] KEHC 522 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1036 of 1994

LA Achode, J

March 9, 2022

IN THE ESTATE OF SERAH TARBANO MIITEKINI (DECEASED)

Between

Samuel Saitoti Meitiakini

Applicant

and

Jane Ngini Meitiakimi

1st Respondent

Pauline Naleku Mitiagini

2nd Respondent

Ruling

1. By the application dated April 17, 2019 brought under Rule 49 of the Probate and Administration Rules, the Applicant is seeking orders that the ruling dated April 3, 2017 be set aside and the application dated October 14, 2014 be heard de-novo and a new ruling made. The applicant also prays for costs.

2. The application is supported by the grounds on the face thereof and the affidavit sworn by the Applicant on a similar date. It was his disposition that the Objectors filed an application dated October 14, 2014 seeking revocation of the grant dated August 25, 1994 and confirmed on 30th March 1995. That upon being served with the application, he filed a replying affidavit sworn on March 16, 2015 and filed on March 17, 2015. That the replying affidavit was served upon the Respondents. He averred that one Jackson Rotich Chemoiywo also filed a replying affidavit.

3. The Applicant contended that upon filing their replying affidavits, the Respondents filed supplementary affidavits and thereafter both parties filed their written submissions.

4. The Applicant stated that neither he nor his advocate was served with a Ruling notice and that they only found out about the ruling upon being served with an application for confirmation. He asserted that the Ruling of the court contains errors on its face being that the Honourable Judge made a ruling with the assumption that he had not filed a replying affidavit.

5. The application was disposed by way of written submissions. Counsel for the Applicant filed submissions dated August 4, 2021. While relying on Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, he submitted that there is an error apparent on the face of the record being a ruling made on assumption that he had not filed a replying affidavit even though it is on record. To support his assertion he cited Succession Cause 88 of 2011: In re Estate of Simoto Omwenje Isaka (Deceased) [2020] eKLR.

6. Counsel further submitted that it is prudent that the Application dated October 14, 2014 should be heard de novo to ensure justice is done.

7. Counsel for the Respondents filed submissions dated 8th September 2021. In it, she submitted that while this court has discretion to review its ruling under Order 45 Rule 1 of the Civil Procedure Rule, such discretion should be exercised judiciously and not capriciously as was held in National Bank of Kenya Limited v Ndungu Njau [1997] eKLR.

8. Counsel contended that the Ruling dated April 3, 2017 considered the Applicant’s submissions, which were a replica of the Applicants replying affidavit in assertion to legal authorities. She asserted that the grant was revoked because it was defective in substance, as the Applicant had left out some beneficiaries in the deceased’s estate. It was therefore her case that there is no ground for review. She cited the case of Stephen Githua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers[2016] eKLR in support.

9. I have considered the pleadings and submissions filed by the learned counsel and in my view the substantive issues for determination is whether the Honourable judge failed to consider the Applicant’s replying affidavit in reaching the determination.

10. Order 45 relating to review is one of the Civil Procedure Rules imported into the laws of succession by Rule 63 of theProbate and Administration rules. To that extent, this Court has the power to review its determination but such power must be exercised within the ambit of Order 45 Rule 1 Civil Procedure Rules which provides as follows;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 review of judgment to the court which passed the decree or made the order without unreasonable delay.”

11. Order 45 provides for three circumstances under which an application for review can be considered. The aggrieved party must demonstrate that there has been discovery of new and important evidence which after exercising due diligence was not within his knowledge or could not be produced. Alternatively, the party must demonstrate that there has been a mistake or an error apparent on the face of the record. The third ground for review is where there is any other sufficient reason.

12. The instant application has been brought on grounds that there is an error apparent on the face of the record. It is the Applicant’s case that the trial court in failed to consider and recognize his replying affidavit. That, the courts ruling clearly indicates that the trial court proceeded and rendered its ruling as if the Applicant had not filed a replying affidavit. The Applicant noted that the failure to consider the replying affidavit amounts to an error on the face of the record.

13. While discussing what constitutes error apparent on the face of the record, the Court of Appeal in the case of Muyodi Industrial and Commercial Development Corporation and another [2006] 1 EA 243, rendered itself that;“In Nyamogo and Nyamogo v Kogo [2001] EA 174 this court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”

14. The effect of the above decision is that an error apparent on the face of the record must be a self-evident error, which does not require any further interrogation. Any error that requires further interrogation does not qualify as an error apparent on the face of the record within the ambit of Order 45 Civil Procedure Rules.

15. In the present application, it is the Applicant’s contention that the Court did not consider his extensive replying affidavit. A record of the impugned ruling gives a synopsis of the progress of the matter before the court. The Court in its ruling gave a summary of the proceedings where it noted that the matter was adjourned severally to allow the Applicant to file his replying affidavit.

16. It is evident that the Applicant takes issue with the wording in the ruling, where the Court noted as follows:“On June 29, 2015, the same application to allow the Respondent file the replying affidavit was made and granted and the matter was to proceed by viva voce evidence.”

17. It is the Applicant’s case however that he had filed a replying affidavit sworn on March 16, 2015 on the March 17, 2016 and served the same but the court record does not capture that fact. The impugned ruling makes reference to the Applicants submission in which he clearly indicated that he had filed his replying affidavit.

18. The record before this court contains a replying affidavit sworn on March 16, 2015 and filed in court on March 17, 2015. It may have thus been an error of omission that the trial court did not acknowledge filing on the replying affidavit.

19. Going by the record, it is this court’s opinion that the error apparent on the face of the record herein touches the distribution of the deceased’s estate, which is also the main issue upon which the matter was originally commenced.

20. In its dictum, the court noted that there were no pleadings to confirm that the beneficiaries signed consents to the proposed mode of distribution outlined in the summons for confirmation of grant. The Applicant however contends that his replying affidavit touches on the consents and offers sufficient explanation for the mode of distribution.

21. In the circumstance and to my mind, the Applicant has established one of the grounds for review.

22. The upshot of the above analysis is that the summons dated April 17, 2019 is allowed in the following terms:i.The ruling delivered on April 3, 2017 by this court be and is hereby set aside.ii.The Application shall be heard afresh.iii.No order as to costs.

DATED SIGNED AND DELIVERED IN VIRTUAL COURT THIS 9THDAY OF MARCH 2022L.A. ACHODEHIGH COURT JUDGEIn the presence of M/S Njagi Advocate for the Objectors.In the presence of Mr. Oonge Advocate for the AdministratorIn the presence of M/S Rotich H/B for Mr. Kaburu Advocate for beneficiary, SoilaIn the presence of M/S Mubei H/B for Mr Kirwa Advocate for beneficiary, Jackson Rotich.