[2021] KESC 62 (KLR)

Wainaina & another (As administratrixes of the Estate of the Late Margaret Wanjiru Kinyara - Deceased) v Kinyanjui & another (As administrators of the Estate of the Late Elizabeth Wanjiru Njenga - Deceased) & 3 others (Civil Application 30 of 2020) [2021] KESC 62 (KLR) (Civ) (5 March 2021) (Ruling)

Margaret Wanjiru Wainaina & another v James Njenga Kinyanjui & 3 others [2021] eKLR

Neutral citation: [2021] KESC 62 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil

Civil Application 30 of 2020

PM Mwilu, Ag.CJ & Ag. P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

March 5, 2021

Between

Margaret Wanjiru Wainaina

1st Applicant

Eunice Wangari Mwangi

2nd Applicant

As administratrixes of the Estate of the Late Margaret Wanjiru Kinyara - Deceased

and

James Njenga Kinyanjui, David Karanja Njenga (As administrators of the Estate of the Late Elizabeth Wanjiru Njenga (Deceased)

1st Respondent

David Karanja Njenga

2nd Respondent

Keziah Muthoni Wainaina

3rd Respondent

Peter Njenga Wainaina

4th Respondent

(Being an application for stay and review of the Ruling and Order of this Court (Maraga CJ, Mwilu DCJ, Ibrahim, Wanjala & Njoki SCJJ) delivered on 4th September 2020)

Ruling

1. Upon perusing the Notice of Motion by the Applicants dated 29th October 2020 and filed on 30th October 2020, which application is brought pursuant to the provisions of Rules 3(5) and 28(5) of the Supreme Court Rules, 2020 and in which the Applicants seek stay and review of the Ruling and orders of this Court dated 4th September 2020; and

2. Upon perusing the affidavit of PAUL AMUGA, advocate and counsel for the Applicants deposed to on 29th October 2020 in support of the Applicants’ application of even date AND wherein the deponent contends that this Court in rendering its decision allowing the 1st Respondent’s Preliminary Objection dated 30th May 2019, failed to consider their filed submissions on record and that they were therefore unjustifiably denied a fair hearing, warranting a review and setting aside of the said impugned Ruling; and

3. Upon further considering the written submissions by the Applicants dated 2nd November 2020 and filed on 4th November 2020 in support of their application for stay and review of the Ruling of this Court dated 4th September 2020; and

4. Further, Upon considering the replying affidavit of the 1st Respondent sworn on 6th November 2020 and filed on 10th November 2020 in which, in opposing the application, contends that there was inordinate delay by the Applicants in filing their submissions on their Petition of Appeal and nonetheless, that the Applicants’ Petition dated 17th May 2019 was struck out on the ground of failure to indicate in which constitutional provisions they were relying on in moving the Court, a defect they contend cannot be cured through submissions; and

5. Upon considering the 1st Respondent’s submissions dated and filed on 25th November 2020 in opposition to the Petitioners’ application for stay and review; and

6. Having considered the application, the supporting affidavit and the submissions in support thereof, and the replying affidavit and the submissions in response and opposition to the instant application, by a unanimous decision of this Bench, we find that;(a)This Court has the jurisdiction to consider an application for review of its decisions as provided under Rules 3(25) and 28(5) of the Supreme Court Rules, 2020;(b)The application by the Applicants dated 29th October 2020 and filed on 30th October 2020 which contends that the jurisdiction of this Court should be invoked to review its decision dated 4th September 2020 allowing the 1st Respondent’s Preliminary Objection application dated 30th May 2019 does not satisfy the principles set out by this Court on the issue of review of its decisions as pronounced in Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others SC Petition (App.) No. 4 of 2012; [2013] eKLR and Fredrick Otieno Outa v. Jared Odoyo Okello & 3 others SC Petition No. 6 of 2014; [2017] eKLR and;(c)The Applicants did not provide sufficient and cogent reasons for this Court to consider and depart from its decision dated 4th September 2020 (Maraga CJ, Mwilu DCJ, Ibrahim, Wanjala & Njoki SCJJ);(d)The Applicants did not establish what constitutional or statutory provisions they sought to rely Upon in their Petition of Appeal before this Court, and which defect could nonetheless not be effectively remedied through the submissions that they had filed on 17th July 2020, and which in any event did not conform with the principles set out by this Court in Daniel Kimani Njihia v. Francis Mwangi Kimani & another [2015] eKLR, Suleiman Mwamlole Warrakah & 2 others v. Mwamlole Tachappu Mbwana & 4 others [2018] eKLR, Rose Jebor Kipngok v. Kiplagat Kotut Application No. 34 of 2019; [2020] eKLR and Cordison International (K) Ltd v. Chairman National Land Commission & 43 others Petition No. 14 of 2019; [2020] eKLR on the requirement of parties to establish and invoke the relevant constitutional and statutory provisions that they seek to rely Upon when coming before this Court.(e)Neither the prayer for setting aside nor review have merit.

7. In the circumstances, we now make Orders as follows;(a)The Notice of Motion application by the Applicants dated 29th October 2020 and filed on 30th October 2020 is hereby dismissed;(b)Each party shall bear its costs thereof.

8. Orders accordingly.

DATED AND ISSUED AT NAIROBI THIS 5TH DAY OF MARCH, 2021. …………………………………………………P. M. MWILUAg. CHIEF JUSTICE & Ag. PRESIDENT OF THE SUPREME COURT…………………………………………………M. K. IBRAHIMJUSTICE OF THE SUPREME COURT…………………………………………………S. C. WANJALAJUSTICE OF THE SUPREME COURT…………………………………………………NJOKI NDUNGUJUSTICE OF THE SUPREME COURT…………………………………………………I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA