[2022] KEHC 3160 (KLR)

Rukaria v M’Ramare & 4 others (Succession Cause 422 of 2011) [2022] KEHC 3160 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3160 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 422 of 2011

TW Cherere, J

July 7, 2022

Between

Esther Mpinda Rukaria

Applicant

and

M’Rukaria M’Ramare

1st Respondent

M’marete M’ramare

2nd Respondent

Japhet Thiora Marete

3rd Respondent

George Nthiuru Marete

4th Respondent

Full Gospel Churches of Kenya Registered Trustee

5th Respondent

Ruling

1. By a ruling dated 30th May, 2018, Gikonyo J. directed that the only asset of the deceased being land parcel number NTIMA/NTAKIRA/1129 be divided equally among all the children of the deceased.

2. Subsequently on 14th June, 2018, a Certificate of Confirmation of Grant was issued in compliance with the court order dated 30th May, 2018 identifying the beneficiaries from each of the two houses.

3. By summons dated 29th March, 2019, Applicant who is granddaughter of the deceased seeks that the order dated 30th May, 2018 be reviewed so that the estate is shared out equally among the 3 sons of the deceased namely M’Marete M’Ramare, M’Mungania M’ Ramare and M’ Rukaria M’ Ramare with the family of M’Mungania M’ Ramare sharing their 1/3 equally.

4. Application is opposed by M’Marete M’Ramare (3rd Respondent/Administrator) by way of a replying affidavit sworn on 09th November, 2020 in which he avers that Applicant has not demonstrated sufficient reason for review.

5. I have considered the application in the light of the affidavits on record and the submission filed by the Applicant and Respondent on 07. 06. 2022 and 14. 06. 2022 respectively and the issue for determination has been made out for an order of review.

6. Review of orders is governed by Section 80 of the Civil Procedure Act which provides inter alia: -Any person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

7. Order 45 rule 1 of the Civil Procedure Rules which is the procedural law o review provides that: -(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 a review of judgment to the court which passed the decree or made the order without unreasonable delay.

8. The Court of Appeal in Anthony Gachara Ayub v Francis Mahinda Thinwa [2014] eKLR restated the main grounds for review which are discovery of new and important matter or evidence; mistake or error apparent on the face of the record; or for any other sufficient reason and most importantly, the application has to be made without unreasonable delay.

9. In National Bank of Kenya Limited v Ndungu Njau (1997) eKLR the Court of Appeal held that:“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter”.

10. The ruling from which the Applicant seeks to review was delivered on May 30, 2018. This application for review was filed on April 3, 2019 which is one year after the ruling sought to be reviewed was made. Delay in bringing this application has not been explained.

11. By seeking an order of review, I understand the Applicant to ask this court to exclude the daughters of the deceased from inheriting their father’s estate.

12. Today, it will be pretentious for any person to say or act ignorantly of the fact that discrimination of any person on the basis of gender or status is prohibited under the Constitution of Kenya, 2010, because; other than the existence of abundantly clear provisions of the Constitution, the chain of judicial decisions on discrimination on the basis of gender or status are equally clear. ( See Rono v Rono & another, 2008 1 KLR (G & F) page 803; Douglas Njuguna Muigai v John Bosco Maina Kariuki & another [2014] eKLR; Mwongera Mugambi Rinturi& another v Josphine Kaarika & 2 others[2015] eKLR; Stephen Gitonga M’murithi v Faith Ngira Murithi [2015] eKLR and Joyce Kabiti M’ Turuchu v David M’ Ntiritu Kiambi[2016] eKLR).

13. With respect, the invitation to this court to review the order dated 30th May, 2018 to excluded deceased’s daughters is rejected.

14. The foregoing notwithstanding, Applicant has raised an important matter concerning distribution. A reading of the Certificate of Confirmation of Grant dated 14th June, 2018 reveals that it has an error, first because it tends to divide the family into two units which contravenes the order dated 30th May, 2018. Further to that, under what is referred to as the first house, item (3), contains a share for M’Mungania M’ Ramare (deceased) and item (4) a share for his widow Joyce Kamba and three children namely Patrick Mwenda, Peter Kimathi and Stephen Munene. This is clearly an error for the reason that the house of M’Mungania M’ Ramare (deceased) appears to have been allocated two shares on the first part.

15. Secondly, under what is referred as the 2nd house, Joyce Kamba and her three children Patrick Mwenda, Peter Kimathi and Stephen Munene have been given separate shares yet they are only entitled to one share on behalf of M’Mungania M’ Ramare (deceased).

16. The foregoing discloses that the Certificate of Confirmation of Grant dated 14th June, 2018 was not issued in compliance with the court order dated 30th May, 2018 and that is sufficient reason for review.

17. Consequently, I reiterate the orders by Gikonyo J made on 30th May, 2018 and direct That:1. The Certificate of Confirmation of Grant issued on 14th June, 2018 shall be rectified to comply with orders dated 30th May, 20182. That the only asset of the deceased being land parcel number NTIMA/NTAKIRA/1129 be divided equally among all the children of the deceased not in their respective houses but each as a single unit3. The single share for M’Mungania M’ Ramare (deceased) shall be distributed equally to his widow Joyce Kamba and their three children namely Patrick Mwenda, Peter Kimathi and Stephen Munene

MENTION ON 16TH NOVEMBER, 2022 TO CONFIRM DISTRIBUTION OF THE ESTATEDELIVERED AT MERU THIS 07TH DAY OF,JULY 2022T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiApplicant - Ms. Gachohi for G.M.Wanjohi Co. AdvocatesFor Respondents - Mr. Kaimenyi for Kaimenyi Kithinji Co. Advocates