Nderito v Nderito & 2 others [2022] KEHC 11144 (KLR)

Nderito v Nderito & 2 others (Succession Cause 307 of 2006) [2022] KEHC 11144 (KLR) (Family) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11144 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 307 of 2006

MA Odero, J

July 15, 2022

Between

Angela Wambui Nderito

Applicant

and

John Kangethe Nderito

1st Respondent

Florence Auma Nderito

2nd Respondent

Elizabeth Wariara Nderito

3rd Respondent

Ruling

1. Before this Court for determination is the Chamber Summons dated 28th December 2021 by which Angela Wambui Nderito the Administrator of the Estate sought the following orders:-1. Spent.2. Spent3. This Honourable court does find and deem necessary to review and/or set aside the Ruling delivered/issued by Hon Lady Justice Maureen A. Odero on 26th November 2021 and orders thereto.4. Upon review and/or setting aside the said ruling of Hon Lady Justice Maureen A Odero delivered on 26th November 2021 as prayed, the court be pleased to fix a date for ruling and/or deliver ruling in respect to the amended summons and thereby issue direction for confirmation of grant.5. Any further orders the court may deem just and fair to Grant.6. The costs of this application be provided for.”

2. The summons which was premised upon Article 50 (1) of the Constitution of Kenya, Section 47 of the Law of Succession Act, Rules 59 (3) (5) & (6), 63 (1) and 73 of the Probate and Administration Rules and all other enabling provisions of the law was supported by Affidavit of even date sworn by the Applicant.

3. The 2nd Respondent Florence Auma Nderito opposed the application through the Grounds of opposition dated 28th March 2022. The application was canvassed way of written submissions. The Applicant filed the written submissions dated 11th April 2022 whilst the Respondents did not file any submissions.

Background 4. The genesis of this application is the Ruling which was delivered by this court on 26th November 2021. The Applicant was aggrieved by said Ruling and now seeks to have the same reviewed on the ground that there exists an error on the face of the record.

5. As stated earlier the 2nd Respondent opposed the application and raised the following Grounds of opposition.1. THAT the Applicant’s Application is incompetent, frivolous, vexatious, lacks merit and is a gross abuse of the court process.2. Thatthere was no error on the face of the record. The applicant is out on a forum shopping exercise.3. Thatthis application is a waste of the court’s time and is aimed at further delaying the conclusion of this succession cause.4. Thatno prejudice will be occasioned to the Applicant should the orders be declined.”

Analysis and Determination 6. I have carefully considered this application, the Grounds of opposition as well as the submissions filed by the Applicant. The Applicant sought a review of the Ruling delivered on 29th November 2021 on grounds that the same contained an error apparent on the face of the record.

7. It is common ground that the High Court has a power to review any orders it makes, but such power must be exercised within the framework of Section 80 Civil procedure Act and Order 45 Rule 1. Section 80 provides as follows: -

80. Any person who considers 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 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. Order 45 rule 1 of the Civil Procedure Rules provides that-(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.

9. The above provisions of law make clear the circumstances under which a prayer for review may be granted.(i)Where there has been discovery of a new and important matter.(ii)Where there exists an error apparent on the face of the record.(iii)For any other sufficient reason.

10. The Ruling in question was delivered on 29th November 2021. The current application was filed on 21st December 2021 barely one (1) month after said ruling was delivered. I find that the application was filed within reasonable time.11 There has been no claim of discovery of a new and important matter warranting a review of the courts ruling.

12. In her application the Administratrix has pointed out two (2) errors-(i)That the trial judge cited the case as Succession Cause 307 of 2008 instead of Succession Cause No. 307 of 2006. (ii)That the trial judge erred in ruling by stating inter alia that:-(a)That the amended summons for confirmation of a Grant be served upon the Objector who is at liberty to file a reply to the same within 21 days.”

13. What then constitutes an error apparent on the face of the record? This must be an error, which is plain to see. In case of James Kiiru Mwangi Vs Gibson Kimani Mwangi& Another eKLR [2020], Hon Justice Sergon described such error thus –“An error apparent on the face of the record must be self-evident error which does not required elaborate arguments to support it.”

14. Firstly, the Applicant alleges that the court mis-cited the case as Succession Cause No. 307 of 2008. I have carefully perused the original signed copy of the Ruling which is in the court file. The matter is clearly cited as Succession Cause No. 307 of 2006. A quick look at all the other pleadings filed in this cause (and it is a very bulky file) reveals that all the other pleadings are labelled Succession Cause No. 307 of 2006.

15. I do note that the copy of the Ruling annexed by the Applicant (which is not the original copy) is Titled Succession Cause No. 307 of 2008. In my view, this could have been a typographical error in the copy supplied to the Applicant. In my view, such inadvertent error is minor and could easily have been remedied through an oral application. It certainly did not require the filing of a substantial application for review. I would not review the judgment on this ground alone.

16. The second ‘error’ pointed out by the Applicant are the directions which were given by the court that the Amended Summons for confirmation of Grant be served or the objector who was to be at liberty to file a reply within 21 days.

17. The position of the Applicant was that the court was through its ruling of 26th November 2021 asking the Applicant to comply with orders which the parties had already complied with. It was averred that parties had already complied with directions given by Hon Justice Ongeri on 18th August 2020 to file written submissions in respect of the Amended Summons dated 15th May 2020. Therefore, the Applicant argued that directing the Applicant to serve the Amended Summons was a mistake or an error apparent on the face of the record.

18. For clarity, this court declined to confirm the grant citing as a reason the non-compliance with orders earlier made to file a full and accurate inventory of assets, which would be expected to guide the court on distribution of the estate. In the Ruling of 29th November 2021 the court stated inter alia as follows: -“In order to confirm the grant and in order to give directions on the mode of distribution of an estate, it is essential that an inventory of ALL the assets comprising the estate be made available. Indeed one of the duties of an administrator is to receive and collect the estate of the deceased.

12. The court needs to know what assets are available for distribution. I am mindful of the fact that in her judgment Hon. Justice Muigai found and held the property known as L.R. No. 774/285 was not part of the estate of the deceased and was therefore not available for distribution.

14. Similarly, in a ruling delivered by Hon Lady Justice Asenath Ongeri on 29th November 2019, the judge reiterated the orders made by the court on 28th August 2015 and directed that an accurate inventory be filed in court to show the properties available for distribution.

15. Courts it is said do not make order in vain. The above orders have not been complied with. The Administratrix has not provided the court with an up to date inventory of all assets available for distribution. In the premises, this court cannot sanction the proposed mode of distribution.

16. Accordingly, I decline at this point to confirm the grant and order that the administratrix file in court an inventory of all assets of the estate available for distribution. The said inventory to be filed and served on all parties within forty (40) days of today’s date.

17. I further direct that the amended summons for confirmation of grant be served upon the objector who is at liberty to file a reply to the same within 21 days....” (own emphasis)

19. It is common ground that the original Administratrix of this estate Elizabeth Wariara Nderito was replaced by the Applicant Angela Wambui Nderito through the Judgement delivered by Hon Justice Muigai on 28th August 2015.

20. Whilst appointing the Applicant as Administratrix of the estate Justice Muigai directed her to trace and confirm all the properties comprising the estate of the Deceased. As at 29th November 2021 when this court delivered its ruling the list of Assets had not been filed. Thus, the orders made on 28th August 2015 had not been complied with.

21. In her supporting Affidavit dated 28th December 2021 the Applicant admits that she filed the full inventory in court on 29th December 2021. At paragraph 29 of the Applicants supporting Affidavit the Applicant states as follows:-“Thatthe applicant owing to her duty under the law of Succession Act, has also complied with the directives of the court and in line with Section 51 (2) (h) of the Act and filed a full inventory of all the assets and liabilities of the deceased on 29th December 2021. ” (Own emphasis)

22. Therefore the Applicant complied with the directions of court six (6) years after Justice Muigai’s ruling of 29th November 2021 one full month after the ruling of this court and the court was therefore quite in order to decline to confirm the Grant as the Applicant by her own admission had failed to comply with orders to avail a full inventory.

23. It must be remembered that this court is taking over the matter, which had been partially dealt with by other Judges. This court is at liberty to make any direction it deems necessary to facilitate the expeditious and fair disposal of the matters. The court is not bound by the directions made by the Judges who previously handled the matter.

24. All in all I find no evidence of error apparent on the face of the record. I find no reason to review the Ruling on 29th November 2021. This application is dismissed in its entirety with no orders on costs.

25. Since the Inventory was only filed on 29th December 2021. I direct that the same be served on all parties. The matter will then be mentioned for further directions.

DATED IN NAIROBI THIS 15TH DAY OF JULY 2022. .................................MAUREEN A. ODEROJUDGE