Onyango & 2 others v Awaa & 2 others [2023] KEHC 26344 (KLR)

Onyango & 2 others v Awaa & 2 others (Civil Appeal E075 of 2022) [2023] KEHC 26344 (KLR) (4 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26344 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E075 of 2022

RE Aburili, J

December 4, 2023

Between

Hellen Akinyi Onyango

1st Appellant

Lavina Achieng Onyango

2nd Appellant

Awinda O. Kennedy

3rd Appellant

and

Peter Okong’O Awaa

1st Respondent

Moses Omondi Awaa

2nd Respondent

Hesbon Otieno Nyamunde

3rd Respondent

(An appeal arising out of the Ruling of the Honourable Linah Akoth in the Chief Magistrate’s Court at Kisumu delivered on the 8th July 2022 in Kisumu CMC SUCC No. 294 of 2022)

Judgment

Introduction 1. The appeal herein arises from the ruling delivered on 8th July 2022 by Hon. Linah Akoth, Senior Resident Magistrate in Kisumu CM Succession Cause No. 294 of 2022. The impugned ruling determined the appellants’ application dated 27. 4.2022 which sought review of the trial court’s ruling dated 29. 3.2022 in which the trial court dismissed their chamber summons dated 27. 10. 2021 wherein the appellants had claimed to be dependants/beneficiaries of the estate of Jamari Muna Adhanja (deceased). The trial court noted that the appellants failed to elaborate the nature of their dependency.

2. In the impugned ruling, the trial magistrate found that the appellants’ application did not meet the threshold to warrant the review of the court’s ruling dated 29. 3.2022.

3. Aggrieved by the trial court’s ruling, the appellants filed the instant appeal vide a Memorandum of appeal dated 19th July 2022 on the 22nd July 2022 raising the following grounds of appeal:a.That the learned resident magistrate erred in law and fact in failing to consider the material evidence before court by dismissing the appellants’ application despite the overwhelming evidence tendered by way of affidavit evidence of Justus Nelson Bong’o and Joseph Okal Onditi as proof of the paternity of the appellants to Jamari Muna Adhanja (deceased).b.That the learned resident magistrate erred in law and in fact in failing to factor material evidence presented before court by failing to consider the affidavit evidence of Joseph Okal Anditi despite the same being on record and having been filed alongside that of Justus Nelson Bong’o thereby misdirected herself that the only affidavit filed was that sworn by Justus Nelson Bong’o on 23. 4.2022 and 19. 6.2022. c.That the learned resident magistrate erred in fact and in law in dismissing the appellants’ application despite there being no documentary proof whatsoever presented by the respondents challenging their paternity to the Jamari Muna Adhanja (deceased).d.That the learned resident magistrate erred in law and in fact in placing the evidentiary proof higher than the established threshold required in civil suits being a balance of probability by dismissing the application on the ground that affidavit evidence was not sufficient to prove paternity of the appellants’ thereby misdirecting herself by holding that there was need to provide other documentations in support thereof.e.That the learned resident magistrate erred in law by considering irrelevant matters in dismissing the appellants’ Notice of Motion application dated 27th April 2022.

4. The parties filed submissions to canvass the appeal.

The Appellants’ Submissions

5. The appellants submitted that the trial court dismissed its application dated 27. 4.2022 vide its ruling of 8. 7.2022 on the principal reason that the appellants had failed to substantiate their relation to the late Jamari Muna Adhanja and that this constituted a sufficient reason upon which the said ruling could be reviewed as was held in the case of Wangechi Kimata & Another v Charan Singh and Pancras T. Swai v Kenya Breweries Limited [2014] eKLR.

6. It was submitted that the trial court misapprehended both the legal and factual basis of their application and thus erred in law and fact in dismissing the application dated 27. 4.2022.

7. The appellants submitted that despite tendering sufficient evidence that they had been locked out from proving their paternity for reasons beyond their control and tabling affidavit evidence of this, their application was still dismissed and this subjected them to a higher standard of proof.

8. The appellants prayed that the appeal be allowed and that they be granted costs of the appeal.

The Respondents’ Submissions

9. The respondents submitted that the appellant’s application had no sufficient reasons canvassed as to why review would have been merited. Reliance was placed on the case of Sadar Mohamed v Charan Sign & Another [1963] EA 557.

10. It was submitted that the costs of the appeal ought to be borne by the appellants as they had failed to achieve the threshold for appeal and subsequently the instant appeal should be dismissed.

Analysis and Determination

11. As a first appellate court, this court has a duty to examine matters of both law and facts and subject the whole of the oral or affidavit evidence adduced before the trial court to a fresh and exhaustive scrutiny before drawing its own conclusion from that analysis bearing in mind that the court did not have an opportunity to hear the witnesses first hand. See the Court of Appeal case of Elizabeth Njambi Kimemia v Florence Ngina Banga [2018] eKLR.

12. I have considered the memorandum of appeal, the pleadings and affidavits filed in the lower court as well as the submissions for and against this appeal.

13. perused the pleadings herein as well as those before the trial court. I find the main issue for determination to be whether the application for review dated 27. 4.2022 filed by the appellants before the trial court was merited.

14. As earlier stated above, the appellants’ application dated 27. 4.2022 sought review of the trial court’s ruling dated 29. 3.2022 in which the trial court dismissed their chamber summons dated 27. 10. 2021 that sought the court to recognize them as dependants /beneficiaries of the estate of Jamari Muna Adhanja (deceased).

15. The application was premised on the grounds among others that the appellants were the deceased’s only children as the deceased died as a bachelor and further that the appellants were denied an opportunity to demonstrate to court their dependency due to their advocate’s mistake and thus the said mistake should not be visited upon them. The appellants further asserted that unless the review orders were granted, they stood to suffer irreparable damage as the respondents were likely to proceed with their illegal acquisition of the deceased’s properties.

16. Review of decisions of a probate court is governed by Rule 63 of the Probate and Administration Rules, which provides as follows: -“63. Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules

(1)Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.(2)Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.”

17. In John Mundia Njoroge & 9 Others v Cecilia Muthoni Njoroge & Another [2016] eKLR, the court cited Rule 63 of the Probate and Administration Rules, and then stated as follows:“As stated above, the only provisions of the Civil Procedure Rules imported to the Law of Succession Act are orders dealing with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attending witnesses, affidavits, review and computation of time. Clearly, Order 45 relating to review is one of the Civil Procedure Rules imported into succession practice by rule 63 of the Probate and Administration Rules. An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review set out in Order 45 of the Civil Procedure Rules.”

18. It is, therefore, clear that any party seeking review of orders, in a probate and succession matter, is bound by the provisions of Order 45 of the Civil Procedure Rules.

19. The said Order 45 stipulates state as follows:“1. (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.(2)…”

20. Order 45 of the Civil Procedure Rules provides for three circumstances under which an order for review can be made. To be successful, the applicant must demonstrate to the court that there has been 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. A party may successfully apply for review, secondly, if he can demonstrate to the court that there has been some mistake or error apparent on the face of the record. The third ground for review is worded broadly: an application for review can be made for any other sufficient reason.

21. In Muyodi v Industrial and Commercial Development Corporation & Another (2006) 1 EA 243, the Court of Appeal considered what constitutes a mistake or error apparent on the face of the record, and stated as follows:“In Nyamogo & Nyamogo vs Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal.”

22. In Paul Mwaniki v National Hospital Insurance Fund Board of Management [2020] eKLR, it was said:“… 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.”

23. The court further stated that:“37. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Act. Put it differently an order, decision, or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.

38. The wisdom flowing from jurisprudence on this subject is that no error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish it.”

24. From the above, it is clear that the error the subject of the application for review ought to be so glaring that there can possibly be no debate about it. An error which has to be established by a long-drawn out process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.

25. The issue of whether or not the appellants are dependants of the deceased and whether or not the trial court ignored evidence on record is, in my humble view, a substantial issue that can only be challenged by way of an appeal and cannot, therefore, be regarded as an error apparent on the face of the record. As was observed in Abasi Belinda v Fredrick Kangwamu and another [1963] E.A 557, “a point which may be a good ground of appeal may not be a good ground for review and an erroneous view of evidence or law is not a ground for review though it may be a good ground for appeal.”

26. Thus, a review lies only for patent error where without any elaborate argument, one could point to the error and say, here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.

27. Is there any other sufficient cause which this court can leverage on to order for review of the impugned ruling? In Republic v Cabinet Secretary for Interior and Co-Ordination of National Government Ex Parte Abullahi Said Sald [2019] eKLR, the court observed, with respect to any other sufficient reason as follows:“A court can review a judgment for any other sufficient reason. In the case of Sadar Mohamed vs Charan Singh and Another [19] it was held that any other sufficient reason for the purposes of review refers to grounds analogous to the other two (for example error on the face of the record and discovery of new matter. Mulla in the Code of Civil Procedure [20] (writing on Order 47 Rule 1 of the Civil Procedure Code of India), (the equivalent of our Order 45 Rule 1), states that the expression 'any other sufficient reason’...means a reason sufficiently analogous to those specified in the rule. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out..., would amount to an abuse of the liberty given to the tribunal under the Act to review its judgement. [21] 31. I also find useful guidance in Tokesi Mambili and others vs Simion Litsanga [22] where they held as follows: -

i.In order to obtain a review an applicant has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason.ii.Where the application is based on sufficient reason it is for the Court to exercise its discretion.”

28. I have said enough to demonstrate the grounds under which an order of review may be granted. The appellants herein did not demonstrate to the trial court that there had been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within their knowledge or could not be produced by them at the time when the ruling was rendered. They did not demonstrate to the trial court that there had been some mistake or error apparent on the face of the record and finally the appellants failed to demonstrate that the review sought was for any other sufficient reason.

29. Accordingly, I am not persuaded that the appellants offered grounds within the meaning of the provisions of Order 45 Rule 1 of the Civil Procedure Rules, 2010. My finding is also fortified by the holding in the case of Evan Bwire v Andrew Nginda Civil Appeal No. 103 of 2000, Kisumu; [2000] KLR 8340 where the court held that ‘an application for review will only be allowed on very strong grounds....".

30. In other words, the grounds relied upon do not fall within the scope for review.

31. I am therefore in agreement with the trial court that the appellants failed to satisfy the court that there were grounds for review of the ruling.

32. The upshot of the above is that this appeal is found to be devoid of any merit and is hereby dismissed. As the matter in the lower court is still pending, I order that each party bear their own costs of the appeal.

33. The lower court file and copy of this judgment and decree be returned forthwith.

34. This file is closed. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 4TH DAY OF DECEMBER, 2023R.E. ABURILIJUDGE