MBALUTO NDONYE v JAMES A. MAKAU, AMABILIS N. MUATHE & NICHOLAS NJERU NJAGI [2008] KEHC 1270 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS

Probate & Admin. Cause 26 of 2002

MBALUTO NDONYE:::::::::::::::::::::::::::::::::::::::::::::::APPLICANT/PETITIONER

VERSUS

JAMES A. MAKAU:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::1ST OBJECTOR

AMABILIS N. MUATHE:::::::::::::::::::::::::::::::::::::::::::::::::::::::2ND OBJECTOR

NICHOLAS NJERU NJAGI:::::::::::::::::::::::::::::::::::::::::::::::::::3RD OBJECTOR

RULING

1.        The Application dated 30. 6.2005 seeks orders that the “courts Ruling delivered on 8th June 2005 be set aside and/or be reviewed”under Order L rule 3, Order XLIV Rule1 (1) (a) of the Civil procedure Rules and Section 3A of the Civil Procedure Rules and section 3A of the Civil Procedure Rules.  The Application is a Notice of Motion and from the beginning I must agree with Mrs Nzei for the Respondent that the procedure adopted and the Rules cited are all wrong.  It is trite that all Applications under the Laws of Succession Act, Cap 160 and the Probate and Administration Rules must be brought by way of a Petition, Caveat or Summons and not Motion as is the case here.

2.        Further, the Civil Procedure Rules are generally inapplicable save as is provided for in Rule 63(1) of the Probate and Administration Rules and in the present Application, only Order XLIV of those Rules is properly applicable.

3.        Notwithstanding my exposition above, in matters of succession, courts are enjoined to determine the matters before them without undue regard to technicalities.  I shall treat the errors made as merely those of form and will proceed to determine the matter on the merits.  The only issue I see in contention is this; Wendoh,J. on 6. 10. 2004 made a ruling in which she ordered  the Land Registrar to file a report “ translating the 3 ½ plots measuring 50x100ft each and 62 x 70 x 73 x 60 ft into hectares before the court can make an order whether the 3rd objector can be included in the list of creditors of the deceased’s estate or not.”

4.        On 26. 5.20-5 the learned judge having seen a report by the District Land Registrar, Machakos, H.S.W. Musumiah noted that the plots above total 0. 1801 hectares and that “the objector has received more than what he is entitled to and should not be listed as one of the beneficiaries to deceased’s estate.”

5.        I see no Ruling delivered on 8. 6.2005 and I take it that it is the above order which is being challenged.  Firstly, I see no reason why the orders of the judge should be set aside because in all the grounds in support of the Application and in the Supporting Affidavit of James Aaron Makau esq. sworn on 30. 6.2005, the substantive prayer sought is one for review.  What is said in that regard is that it was an error on the face of the record to say that the 3rd objector had received more than his share of the estate when he in fact only received 0. 10 hectares.  The other issue is that the court failed to take into account the debt of Kshs. 68,547/= which was due to the 3rd objector as per the decree in SPMCC No. 63/1997- Nicholas Njeru Njagi  vs Mbaluto Ndonye & Another.

6.        I have carefully considered the issue in dispute and I sadly do not see merit in the matter regarding the size of the plots in question.  The learned judge relied on the expert advice of the District Land Registrar who came up with a concise report that the two plots total 0. 1801 hectares each.  The 3rd objector has received and admits receiving 0. 10 hectares.  The difference in the two computations is 0. 0801 hectares which in my view is not significant enough to overturn the earlier decision.  In any event, land is not measured to the exact mathematical figure but near as possible to it hence the often used phrase “– acres or hectares or thereabouts.”There is always a plus or minus element in computation and assuming that my view is erroneous, I completely see nothing to review in this case because I see no error on the record.  An error on the record is one which is so glaring as to warrant no evidence or debate and I see none in this case and I have said why.

7.        However, on the issue of Kshs. 68,547/= it is not denied that there is a decree against the deceased in that amount.  If that be so, when the learned judge said that the 3rd objector is not entitled to any share of the deceased’s estate, that amount was not taken into account and there is sufficient reason to review the orders made on 26. 5.2005 and to include that sum as a debt due from the deceased’s estate.  The orders are thus reviewed and the Application allowed only to that extent.

8.        The third objector shall have only ½ costs of the Application since he has not wholly succeeded.

9.        Orders accordingly.

Dated and delivered at Machakos this 24th day of September 2008.

Isaac Lenaola

Judge

In the Presence of: Mr. Makau for Applicant

Mrs Nzei for Respondent

Isaac Lenaola

Judge