Kamau v Wanyoike & another (Civil Appeal 181 of 2008) [2012] KECA 27 (KLR)

The phraseology of Order XLIV rule 1(1) CPR, permitting any person considering himself aggrieved by a decree or order to apply for review, is wide enough to cover the respondents. Alternatively, if the application is treated as one for revocation, section 76 of the Law of Succession Act and rule 44(1) of the P&A Rules permit any person interested in the estate to apply. The respondents, as descendants entitled to inherit, had a direct interest.

Rule 63(1) of the P&A Rules applies Order XLIV CPR to succession proceedings so far as relevant. The estate's value fell within the Resident Magistrate's monetary jurisdiction under section 44 of the Act, so the court had jurisdiction to grant and confirm the grant, and where a subordinate court has jurisdiction under section 48 it also has jurisdiction to entertain review in the same cause. Revocation jurisdiction, however, is exclusively the High Court's.

The motion sought review and setting aside of the confirmation order only to the extent of the 1.2 acres awarded to the appellant, and did not invoke any of the grounds in section 76. The defects relied on were apparent on the face of the petition and supporting affidavits: the appellant was neither creditor nor beneficiary, no justification was given for her allocation, and the consent of Samuel Wanyoike Magondu required by rule 40(8) P&A Rules was not obtained.

The appellant claimed she had bought 1.2 acres and paid Kshs 1,000 and a bed sheet/basket, but both courts below found there was no evidence of purchase. Before section 93 protection could be invoked she first had to prove she was a purchaser. Further, section 82(b)(ii) rendered a sale by the administratrix before confirmation of the grant illegal.

Under rule 6 of former Order XLIV CPR (now Order 45 rule 5), granting review means an order for rehearing. The confirmation application made by Beatrice Njeri Magondu should have been reheard on the merits, but this is practically impossible since she is deceased and the respondents have not taken over the proceedings. The court therefore preserved the appellant's right to pursue her claim to the land in appropriate proceedings.