Albert Ober Obiero & 1 other v Estate of Felicita Owuor Ochieng & 3 others
The bottom line
#Kenya's Court of Appeal dismissed a family's attempt to revisit a 2011 estate ruling, confirming that review is no substitute for an appeal and must be filed promptly.
What this practically means
#Executive summary
#Key legal issues
#Scope of the High Court's powers under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules
The learned Judge was not in error in limiting herself to the exercise of revisionary powers; Section 47 and Rule 73 preserve inherent and expedient powers but do not convert a review application into an appellate remedy.
Section 47 confers jurisdiction to entertain applications and make expedient orders, while Rule 73 preserves inherent power for the ends of justice. However, the appellants used those provisions to challenge the mode of distribution and alleged interference with a closed Trust. The court agreed with Thande J that such complaints, even if arguable, are appellate grounds and cannot be pursued by way of review, so limiting the application to revisionary powers was not erroneous.
Whether the application dated 28th June 2017 met the requirements for review under Order 45 of the Civil Procedure Rules
It did not: the claimed discovery of the depleted Kenya Airways funds was not new matter, and the alleged errors were not errors apparent on the face of the record.
Rule 63 of the Probate and Administration Rules imports Order 45 into succession proceedings. At the time of Nambuye J's judgment the appellants were minors whose interests were managed by their mother, the 3rd respondent, who deposed that the funds had been spent on upkeep and education abroad. The depletion was therefore within her knowledge and by extension the appellants'. The application in substance challenged the judgments of Nambuye J and Kimaru J, which is a matter for appeal, not review.
Whether the delay of about six and three years respectively in filing for review was justified
The delay was inordinate and unexplained; the reasons now advanced before the Court of Appeal were not plausible.
The application and supporting affidavit gave no reasons for the delay. Albert was already 18 when the 2011 decision was made, and both appellants were adults aged 21 and 19 when the 2014 ruling was made, yet no explanation was offered for the intervening years. The mother who represented them neither appealed nor sought review. The Court found no basis to fault the trial judge's conclusion on inordinate delay.
Legal principles established
#- In a first appeal from the High Court, the Court of Appeal must reconsider the evidence, evaluate it itself and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
- Challenges to the mode of distribution of estate assets or to the redistribution of a closed Trust are matters for appeal and cannot sustain an application for review under Order 45.
- Knowledge held by a minor's litigation representative (guardian/next friend) is imputed to the minor, defeating a claim of discovery of new matter for review purposes.
- Review applications under Order 45 Rule 1 must be made without unreasonable delay, and the grounds are discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.No orders as to costs, the parties being members of one family
- On appeal from
- High Court of Kenya at Nairobi
- Succession cause (ruling of May 14, 2022)
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court in succession proceedings under the Law of Succession Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Albert Ober Obiero & 1 other v Estate of Felicita Owuor Ochieng & 3 others", Case Analysis (2024). Succession appeal arising from Nairobi High Court Succession Cause (initiated 2001); appeal against ruling of May 14, 2022 (Thande J). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1505/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.