In re Estate of Elias Ondego Akungu (Deceased) [2022] KEHC 16442 (KLR)

In re Estate of Elias Ondego Akungu (Deceased) (Probate & Administration 17 of 2016) [2022] KEHC 16442 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16442 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Probate & Administration 17 of 2016

KW Kiarie, J

December 14, 2022

IN THE MATTER OF THE ESTATE OF ELIAS ONDEGO AKUNG (DECEASED )

Between

Consolata Anyango Ondego

Objector

and

Maurice Ochieng Ondego

Respondent

Ruling

1. Maurice Ochieng Ondego, the petitioner/applicant herein moved the court by way of Notice of Motion dated January 12, 2022 under sections 1A, 3A & 80 of the Civil Procedure Act and section 40 of the Law of Succession Act. He is seeking the following orders:a.That this application be certified as urgent, service be dispensed with and heard ex parte in the 1st instance.[spent]b.That this honorable court be pleased to stay execution of the decree from the ruling of Hon Justice KW Kiarie delivered on the 9th day of December, 2021 pending the inter-parties hearing and determination of this application.c.That this honorable court be pleased to review the ruling delivered on the 9th day of December, 2021. d.That the costs of this application be in cause.

2. The application is premised on the following grounds:a.That the respondent herein did not serve the applicant with the summons for confirmation of grant of administration intestate dated November 8, 2021 and during the hearing by the honorable learned judge in coming to his impugned ruling did not recognize that the applicant herein and the respondent emanate from two distinct and separate households of the deceased’ estate.b.That the applicant’s mother was the 2nd wife of the deceased blessed with two children, the applicant herein and a daughter while the respondent herein was the 1st wife and was not blessed with any children.c.That the honorable learned judge in coming to his impugned ruling failed to recognize that the mode of distribution of the deceased estate ought to have been distributed equally amongst the two households as represented by the applicant and the respondent.d.That November 9, 2021 the respondent herein filed in this honorable court summons for confirmation of grant of the administration intestate dated November 8, 2021 apportioning the respondent herein a bigger portion, that is to say 0. 35Ha, while the applicant was apportioned 0. 07Ha of land parcel Kanyada/Kotieno/Katuma’A’/1265 in the mode distribution and the Hon. learned judge allowed the confirmation of the grant dated November 8, 2021 to the applicant’s detriment.

3. The application was opposed on the following ground that it goes against the provisions of Civil Procedure Rules.

4. On December 9, 2021 when this matter came up for the confirmation of grant, M/s Obar who was holding brief for Mr Obach for the petitioner /applicant addressed the court as follows:May the grant be confirmed as applied.”

5. Although Mr Nyakwamba for the objector was absent, the court proceeded to confirm the grant for he was present on November 10, 2021 when the date for confirmation was taken.

6. The application for confirmation dated November 8, 2021, was drawn and filed by the firm of Nyakwamba & Company Advocates. There was no objection to it and it was M/s Obar holding brief for Mr Obach for the petitioner /applicant who asked the grant to be confirmed as applied.

7. Section 80 of the Civil Procedure Act provides for review as follows: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; or(b)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.

8. The procedure for the review is provided under Order 45 (1) of the Civil Procedure Rules 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 a review of judgment to the court which passed the decree or made the order without unreasonable delay.

9. In the case of theNational Bank Of Kenya Limited v Ndungu Njau [1997] eKLR the Court of Appeal stated: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. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.

10. In the instant case, the applicant has not demonstrated that there is 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. He has equally not demonstrated that there is an apparent error on the face of the record.

11. The applicant through his advocate asked for the grant to be confirmed as applied. The court therefore had every reason to believe that there was no objection for it had been drawn by the rival party. It is erroneous therefore for the applicant to attribute the confirmed grant to the court.

12. I therefore find that the application lacks merits. The same is dismissed with costs.

Delivered and signed at Homa Bay this 14thday of December, 2022. KIARIE WAWERU KIARIEJUDGE