In re Estate of Richard Olela Kinara (Deceased) (Civil Appeal E049 of 2021) [2023] KEHC 998 (KLR) (16 February 2023) (Ruling)
Neutral citation:
[2023] KEHC 998 (KLR)
Republic of Kenya
Civil Appeal E049 of 2021
KW Kiarie, J
February 16, 2023
Between
Joseph Omondi Olela
Appellant
and
Moses Omondi Odhiambo
Respondent
Ruling
1.The respondent/applicant moved the court by way of notice of motion dated November 10, 2022. It was brought under sections 1A, 1B & 80 of the Civil Procedure Act, & order 51 rule (1) as read with order 45 rule 1 (1) (a), 2 (1) &3 (2) of the Civil Procedure Rules. The applicants are seeking the following orders:a.That this application be certified as urgent, service be dispensed with and heard ex parte in the 1st instance.b.That the honorable court be pleased to stay execution of the decree from the judgment of this court, delivered on the November 8, 2022 pending the inter partes hearing and determination of this application.c.The honorable court be pleased to review the judgment and decree of this honorable court made on the November 8, 2022.d.The costs of this application be in the cause.
2.The application was premised on the following grounds:a.The applicant is aggrieved with the decree of this court from which appeal lies but no appeal has been filed.b.There is some mistake or error apparent on the face of the record and the judgment does not resolve the issues raised by the appeal.c.That the court being the first appellate court with a duty to evaluate the entire evidence on record omitted some crucial evidence which were not on record and could have made the honorable court rule otherwise.d.That the applicant has since discovered new and important evidence which, after the exercise of due diligence could not be produced by him at the time when the judgment was made.e.That it has come to the attention of the applicant that deceased’s estate had already been succeeded in Kisii High Court succession cause No 209 of 2005 and a certificate of confirmation of grant issued to that effect before the applicant purchased part of the estate.f.That the subsequent succession being Oyugis Senior Principal Court succession cause No 209 of 2020 which this appeal lied was therefore void ab initio as a deceased estate cannot be succeeded twice.g.The judgment did not make any reference to the Kisii High Court succession cause No 209 of 2005 nor did it render any direction on the same vis-à-vis the pending Oyugis Senior Principal Court succession cause No 202 of 2020.h.That a serious miscarriage of justice has been occasioned by the failure of the court to give consideration to the Kisii High Court succession cause No 209 of 2005 which had already been concluded.i.That since the administrator of the deceased estate had a confirmed grant which grant is still valid to date prior to the sale of land parcel number Kasipul/Kojwach Kamiro/1223 to the applicant herein then the transaction between the parties did not amount to intermeddling with the deceased estate and was in the line with section 82 (b) (ii) of the law of Succession Act as such the applicant ought not to be condemned to pay costs.j.That the said orders are highly prejudice to the applicant.k.That the application has been brought in good faith and without undue delay.
3.The respondent opposed the application on the following grounds:a.That the application lacks merit.b.That he has no knowledge of the Kisii High Court Succession cause number 209 of 2005.c.That the said succession cause refers to land parcel numbers East Kasipul/Kojwach Kamiooro/540 &472.d.That the introduction of the new evidence would be prejudicial.
4.Order 45 rule 1 of the Civil Procedure Orders provides for review in the following terms:(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.
5.It is incumbent upon the party who alleges an error on the face of the record to point out the error. The error or omission must be self-evident and should not require an elaborate argument to be established. In the case of Nyamongo and Nyamongo v Kogo [2001] EA 174, the Court of Appeal commented on what constitutes an error on the face of the record as follows:Further, in the case of National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, the Court of Appeal held that;
6.In his paragraph 6 of the supporting affidavit, the applicant states:
7.The land parcel number that featured in Oyugis Senior Principal Magistrate’s succession cause number 202 of 2020 was Kasipul/Kojwach Kamioro/1223. At the time of the ruling by the trial court, land parcel numbers East Kasipul/Kojwach Kamiooro/540 &472 did not feature anywhere. This is what the applicant says is a new discovery. He contended that a grant had been confirmed in Kisii High Court Succession cause number 209 of 2005. It was in this succession cause where land parcel numbers East Kasipul/Kojwach Kamiooro/540 &472 featured.
8.In the case of D. J. Lowe & Company Limited v Banque Indosuez[1998]eKLR the Court of Appeal while remarking on discovery of new evidence said:
9.The applicant has not demonstrated how within two days of the judgment he seeks to be reviewed, he came to possess the new evidence and which he could not have discovered before, after the exercise of due diligence. I get an impression that what he calls new evidence was all along within his knowledge. He had a duty to place it before the trial court for consideration. In the case of Rose Kaiza v Angelo Mpanju Kaiza [2009] eKLR the Court of Appeal while commenting on the issue of discovery of new evidence, quoted Mulla with approval as follows:
10.From the foregoing analysis, I find that the applicant has not demonstrated that he has made a discovery of new facts within the meaning of order 45 rule 1 of the Civil Procedure Rules to warrant a review. The application is therefore dismissed with costs.
DELIVERED AND SIGNED AT HOMA BAY THIS 16TH DAY OF FEBRUARY, 2023KIARIE WAWERU KIARIEJUDGE