In re Estate of Stanley Manyara Murithi (Deceased) [2023] KEHC 26628 (KLR)

In re Estate of Stanley Manyara Murithi (Deceased) (Civil Appeal E027 of 2023) [2023] KEHC 26628 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26628 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E027 of 2023

TW Cherere, J

December 14, 2023

IN THE MATTER OF THE ESTATE OF STANLEY MANYARA MURITHI (DECEASED)

Between

Rosemary Gatimbi M’nchebere

Applicant

and

Hellen Nthiori Manyara

1st Respondent

Elias Mutugi Manyara

2nd Respondent

Ruling

Background 1. By a ruling dated 27th July, 2023, this court dismissed the Applicant’s summons for an injunction on the ground that it was unmerited. This court also discharged the interim orders of injunction issued on 15th March, 2023 are discharged.

2. By summons dated 19th October, 2023, Applicant has moved seeking review and setting aside of the orders dated 27th July, 2023 on the grounds that Respondents have destroyed her crops and threatening her with eviction.

3. Respondents have opposed the application vide a replying affidavit worn by the 1st Appellant on 23rd November, 2023 denying Applicant’s allegation. Respondents further contend that Applicant has not demonstrated discovery of new matters and that if aggrieved by the order dated 27th July, 2023, Applicant ought to file an appeal.

Analysis and Determination 4. I have considered the application in the light of the affidavits on record and annexures and the issue for determination is whether Applicant has made out a case for orders sought.

5. The law governing review of orders is anchored under Section 80 of the Civil Procedure Act and Order 45 (1) of the Civil Procedure Rules. Under Order 45(1) of the Rules, a party seeking review must prove that the application is filed without unreasonable delay; discovery of new or 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. This position was emphasized in the case of In re Estate of Maero Tindi (Deceased)[2018] eKLR.

6. I understand the Applicant to say that since the delivery of this court’s ruling on 27th July, 2023, Respondents have committed certain acts that are prejudicial to her.

7. Certainly, such new matters do not fall within the preview of a review since they did not exist as at the time the ruling was delivered.

8. For the reasons that I have outlined hereinabove, the summons dated 19th October, 2023 is unmerited and it is dismissed with no order for costs.

9. I notice that since this appeal was filed on 23rd February, 2023, Appellants/Respondents have not taken any steps towards prosecuting the appeal. The Appellants/Respondents are directed to file and serve the record of appeal not later than 45 days from today’s date.

10. Mention on 29th February, 2024 to confirm compliance and for further orders.

DELIVERED IN MERU THIS 14TH DAY OF DECEMBER 2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Applicant - N/A for Elijah K. Ogoti & Co. AdvocatesFor Respondents - N/A for OMK Advocates LLP