Mary Wambaya v Jacob Joseph Wambaya (Personal representative of Esperance Perside Wambaya) [2019] KECA 1 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that complaints about how a deceased person's estate was shared must go through an appeal, not a review application, especially after long delays.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal was competent given that the Notice of Appeal named a deceased person as respondent
- 2.Whether the appellant made out a case for the grant of orders of review of the judgment of the High Court, on the grounds of error apparent on the face of the record, mistake, or discovery of new and important evidence
Key legal issues
#Whether there was an error apparent on the face of the record in including Kitale Municipality Block 15 (Koitogos) 746 in the estate
No error apparent was established; the appellant did not annex a certificate of title proving the property was hers, and she herself had listed the property for distribution.
The court applied the Nyamogo & Nyamogo test: an error apparent on the face of the record must stare one in the face and admit of no two opinions. Determining ownership of the property would require inquiry beyond the material before the court, so the alleged error could not be established on the record as it stood.
Whether the Provincial Commissioner's letter on the Olenguruone parcel constituted new and important evidence justifying review
It did not; the letter dated 16 April 2004 could have been obtained earlier and strict proof of due diligence was lacking.
Citing Muyodi v ICDC, the court restated that an applicant must show discovery of new matter which after due diligence was not within knowledge or could not be produced earlier, and that the application must be made without unreasonable delay. The property had been listed as one of the deceased's, and no prior steps to ascertain its existence were disclosed.
Whether the appellant's grievances over the mode of distribution could ground a review
No; complaints about the mode of distribution belonged in an appeal, not an application for review, and the 10-year delay and filing one year after judgment had not been explained.
Following the High Court's reasoning and Francis Origo, the court held that challenging the manner in which the estate was distributed was properly the subject of appeal. The appellant disclosed no sufficient reason to warrant interference with the trial court's judgment dismissing the motion for review.
Whether the appeal was incompetent because the Notice of Appeal named the deceased respondent
The irregularity was curable under rule 85(2) of the Court of Appeal Rules, which permits substitution of the deceased's legal representative.
The court accepted that naming a deceased person as respondent was irregular but held rule 85(2) expressly saves such appeals by allowing the legal representative of the deceased to be made a party in place of the deceased, which had effectively occurred here as Esperance's son and legal representative was on record as respondent.
Legal principles established
#- A review may only be granted to correct an error that is self-evident and apparent on the face of the record; an erroneous conclusion of law or evidence is a ground of appeal, not review.
- An application for review based on discovery of new and important matter or evidence requires strict proof of the allegation, and the application must be made without unreasonable delay.
- An appeal is not incompetent merely because the respondent was dead at the time of institution; the Court may substitute the deceased's legal representative.
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kitale
- P&A Cause No 6 of 1997
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules, 2010 (appeal from the High Court in succession proceedings)
Relief refused
#Setting aside the High Court ruling of 22 July 2015 and review and redistribution of the estate per the judgment of 21 February 2003
The appellant's complaints went to the mode of distribution and ought to have been pursued on appeal, not review; no error apparent on the face of the record nor new evidence was established, and the application was made after inordinate delay
Claim that inclusion of Kitale Municipality Block 15 (Koitogos) 746 in the estate was an error apparent on the face of the record
No certificate of title was annexed to prove the property was registered in the appellant's name; ownership would require inquiry beyond the record
Claim of discovery of new evidence regarding the Olenguruone parcel
The letter from the Provincial Commissioner could have been secured earlier; the appellant failed to show due diligence
Costs
The appeal was dismissed with each party bearing its own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, this appeal fails, and we order it dismissed with each party bearing its own costs.
an erroneous conclusion of law or evidence is not a ground for a review but may be a good ground for appeal.
an application based on the ground of discovery of new and important matter or evidence will not be granted without strict proof of such allegation.
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.
Issues in the judgment
#The ruling described in paragraph 7 states the Judge held the appellant 'had made out a case for review' while also dismissing the motion; this appears internally inconsistent and is likely a typographical error for 'had not made out a case'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wambaya v Jacob Joseph Wambaya (Personal representative of Esperance Perside Wambaya) [2019] KECA 1 (KLR)", Case Analysis (2019). Civil Appeal No 89 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1/eng@2019-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.