In re Estate of Maunda Kibunguchi (Deceased) [2017] KEHC 2617 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

SUCCESSION CAUSE NO. 126 OF 2003

IN THE ESTATE OF MAUNDA KIBUNGUCHI  -  DECEASED

JULIUS KISABULI MAUNDA........1ST OBJECTOR

BEN KHAMALA MAUNDA.............2ND OBJECTOR

VERSUS

STANLEY MISIGO MAUNDA................PETITIONER

J U D G M E N T

1.  By his application dated 10/3/2017 the applicant prays for the following orders;

1) that this honourable court be pleased to review itsorders of 5th December 2016.

2) that the application dated 29th June 2016 be reinstated and same be heard on its  merits.

3) costs be provided for .

2.  The same is supported  by the sworn affidavit of Michael Muhuyi Kiveu Advocate for the applicant.  He deponed on behalf of his client that his client was  not served with the hearing date of the application as deponed  in the affidavit of service of one Godfrey Masinde, the process server.

3.  He further depones that the specimen signature on record does not belong to his client and thus the parties in this suit ought to be granted a chance to agitate their claim.

4.  The respondent Julius Kisabuli Maunda filed a replying affidavit on his behalf and his co-objector in which he has urged this court to dismiss the application as there was no error apparent on the face of record.  That the applicant infact was served  twice but he failed to respond to the application.

5.  I have read the written submissions on record in support and in opposition to the application. What is clearly in dispute is whether this court can review its order based on an error apparent on the face of  record.

6.  When the substantive application dated 29th June 2016 came for hearing there was no doubt that the applicant had been served.  This was supported by the affidavit of service of Godfrey Masinde.  The applicant through his advocate has deponed that he was “never informed of the date of the hearing of the said application.”

7.  From the above its assumed  that the applicant already had been served with the application and all that he was complaining of was the fact that he was not served with a hearing date.  If this is so, why did he not file any reply to the said application for revocation of grant?

8.  More importantly, he has argued that “the specimen of the signature on the face of record of the alleged served documents does not tally with the respondent's signature.”

9.  This averment is from his advocate. As correctly submitted by the respondent the applicant in person ought to have deponed. How well for example does the counsel on record know his clients signature??  I find this to be  a very dangerous and slippery path taken by Mr Kiven on behalf  of his client. In any case there was no alternative signature provided to this court to at least make a “naked eye” comparison.  In fact no explanation has been given why the applicant did not file any response in person as he is the one purportedly served and not counsel.

10.  In terms of the Law a review will always be considered where there was a new and important evidence or an account of some mistake or error apparent on the face of record – see Order 45(1) of the Civil Procedure Rules).

11.  In this case the applicant has argued that there was an error on the face of record.  In Muyodi Vs Industrial and Commercial Development Corporation & Another E.A. LR (2006) 1 EA 213 and cited in Muhamed Mungai Vs. Ford Kenya Election, and Nominations  Board and Another, Nairobi High  Court Judicial Review Mis Application No. 53 /2013,  the court  interalia went on to state;

“For one to succeed in having an order reviewed for mistake or error apparent on the record, he must demonstrate that the order contains a mistake that is there for the whole  world to see.  It is not enough for an applicant to say that he is dissatisfied with the decision or that the same is wrong. Such opinions ought to be the subject of an appeal.  The applicant before  us has not established that there is an error or mistake  in decision he has asked us to review.  He has not even pointed out what in his opinion is the error or mistake in that decision. He has just told us to review the court's decision. That is not good enough, his dissatisfaction with the decision aforesaid not withstanding.  We therefore find no  reason for reviewing the decision on the said ground.”

12.  Similarly in the instant case, the applicant has simply told his  counsel on record to depone that he was not served with the hearing date and that his signature was “forged.”

13.  What error  then is there apparent on the face of record? The applicant has not even demonstrated by a draft replying affidavit to show that he was opposed to the application.

14.  This application ought to  fail. I note that all is not lost for the applicant. He will still agitate his rights in the estate once all the parties are involved in the substantive succession proceedings.

15.  The application is hereby disallowed with costs to the respondents.

Delivered, signed and dated on 9th day of October, 2017 at Kitale.

In the presence of;

Munialo for Chebii for Respondent

Karani for Kiveu for Petitioner

Kirong – Court Assistant

H.K. CHEMITEI

JUDGE

9/10/17