[2015] KEHC 3592 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSION CAUSE NO. 64 OF 1995

IN THE MATTER OF THE ESTATE OF M’MARANYA M’KIERWA (DECEASED)

ROSE MATAIA KIREMA ………………… PETITIONER/RESPONDENT

V E R S U S –

JULIUS BUNDI MARANYA ………………………………… OBJECTOR

RULING

1. The Objector/Applicant JULIUS BUNDI MARANYA through an application dated 5th November 2014 seeks the following orders;-

1. That the honourable court be pleased to set aside/review its orders dated 15th October 2014 where it allowed application dated 18th March 2014.

2. That this honourable court do make another or better relief it may deem fit to grant.

3. That costs of this application be in the cause.

2. The application is premised on the ground on the face of the summons interalia; that this cause came up for hearing of an application dated 18th March 2014 which was allowed against the applicant wishes; and if that if the order of 15th October 2014 is effected the applicant will suffer irreparable damage. The application is further supported by supporting affidavit of the applicant dated 5th November 2014 in which the applicant deponed; that he is a beneficiary to the estate of the deceased herein; that on 15th October, 2014 the court allowed the application dated 18th March, 2014 and which order if implemented the applicant will be evicted; that when the confirmation was done the applicant never realized he had been given a portion of land in LR.No. Nyaki/Munithu/461; that the applicant resides on Plot No.Nyaki/Munithu/913 where he has built a permanent house and if evicted he will suffer irreparable damages; that he urges the honourable court to set aside the order for eviction and have confirmed grant amended and he be given a portion of land in LR.No.Nyaki/Munithu/913 where he has built a permanent house.

3. The Petitioner is opposed to the application through a replying affidavit dated 15th December 2014. The Petitioner condemns the application terming it as an abuse of court’s orders; that the petitioner contends that this is an old matter and has been pending due to numerous applications by the applicant/objector; and besides that he was in court when the order was made; that the grant was confirmed on 28th May 2009 as per annexture “RMK1” that each party was granted his portion of land and the petitioner was granted L.R.No. Nyaki/Munithu/913 measuring 0. 38acres while the objector was awarded L.R. Nyaki/Munithu/461 measuring 0. 06 hactres and Nyaki/Munithu/1075 measuring 0. 06 hactres; that the objector did not raise any objection to the mode of distribution; that by a letter annexture “RMK2” dated 29th May 2013 the objector was requested to vacate from the petitioner’s share but did not comply; that summons to enable petitioner get her portion were filed as per annexture “RMK3”; that on the material date of the hearing of the application. The applicant/objector was before court and did not raise any objection to the application; that court gave objector 30 days to vacate or else he be forcefully evicted as per annexture “RMK4”; that it is unfair for the applicant to continue staying in petitioner’s suit land and still keep his share under the already confirmed grant; that the petitioner and her sister who were given L.R. Nyaki/Munithu/913 are desirous to occupy their portions; that the respective portions have already been transferred to the respective beneficiaries; and what is remaining is issuance of title deeds; that the applicant seeks to amend confirmed grant through back door; that the order sought to be reviewed and set aside is not annexed; that the applicant/objector has been aware of the court’s orders and confirmed grant; that the applicant/objector will not suffer any damage as he has always been aware of all court proceedings; and as regards the share he got when grant was confirmed.

4. When the application came up for hearing the applicant/objector appeared in person whereas Mr. Mutunga learned counsel appeared for the petitioner. The applicant in support of this application made a different argument from the one contained in the application. He was warned by the court he was advancing different arguments from the ones he had put up but insisted on arguing his application on different grounds.

5. The applicant/objector urged that he wants his family members to come to court as the people granted shares of the land are not family members. He contended that all his family members have not been listed and that the success cause was filed without knowledge of his family members. That they had sat down and agreed as a family on the distribution. He contended that the application dated 5th November 2014 is not his application; however on being shown this application by the court he owned it.

6. Mr. Mutunga learned counsel on his part urged this court to consider the application untenable and without merits as no reason was given to want the review of the court’s order. He relied on petitioner’s replying affidavit in opposing the application, urging that the matter is concluded and grant confirmed. That parties gave evidence before decision was reached by the court.

7. I have very carefully considered the applicant’s/objector’s application; the petitioner’s replying affidavit and annextures thereto; applicant’s/objector’s submissions and the petitioner’s counsel submissions. The issue for consideration is whether the applicant/objector has satisfied the conditions to want a review of the court’s order dated 15th October 2014?

8. The court’s order sought to be reviewed was made on 15th October 2011 in presence of the objector. The said order is not attached to the applicant’s/objector’s application but the said order stated as follows:-

“Application having been served and unopposed is allowed as prayed. Respondent to deliver vacant possession within 30 days indefault to be forcefully evicted.”

8. The conditions under which a party can seek review and setting aside of court’s order are well spelt out under Order 45(1) (a) and (b) of the Civil Procedure Rules which provides:-

45 (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 are a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

9. The provisions of Order 45 of the Civil Procedure Rules previously (Order XLIV) is applicable in the Law of Succession matters. Rule 63 (1) of the Probate and Administration Rules provides:-

63. (1) “Save as in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure rules, namely Orders V,X,XI,XV,XVIII,XXV,XLIV and XLIX, together with the High Court (Practice and Procedure) Rules, shall apply so far as relevant to proceedings under these Rules.”

10. The applicant/objector has not in his application set out any of the grounds set out under Order 45 of Civil Procedure Rules in seeking review. The applicant has not in his submissions relied on any of the grounds set out in his application but instead raised completely new matters which were not pleaded not related to his application. The applicant/objector was present at the time of issuing the order subject of the application for review and he stated in reply and I quote;

“I am on applicant’s land”

The applicant had not filed any replying affidavit or grounds of objection. He was aware of the nature of the application and did not oppose it. His allegation that the application was allowed against his wishes is not supported by any document on record. He did not file any replying affidavit nor did he oppose the application orally. The court did not deny him the right to be heard. I am satisfied that the application is an afterthought and intended to delay the petitioner’s access and use of her share of family land.

11. The grounds raised by the applicant/objector in his submissions did not relate to the matters raised in the application dated 18th March 2014. I find that the applicant raised matters outside his pleadings and which were irrelevant and did not support the applicant/objector’s case.

12. Having come to the conclusion that the applicant has not satisfied the conditions for seeking orders of review I find and hold that the applicant’s/objector’s application is without merits and the same is baseless. I therefore make the following orders;

(a) That the applicant’s/objector’s application dated 5th November 2014 be and is hereby dismissed.

(b) That the Petitioner gets costs of the application.

DATED and signed on this 2nd day of July, 2015 at Meru.

J.A.MAKAU

JUDGE

2. 7.2015

DELIVERED in open court in the presence of;

Mr. Mutunga for the petitioner

Applicant/objector in person

Court clerks – Penina/Mwenda

J.A.MAKAU

JUDGE

2. 7.2015