Zaid Nassar Ali v Omar Nassar Ali & 2 others [2018] KEELC 496 (KLR)
The bottom line
#Kenya's High Court restored a 2012 ruling that two plots belonged to a son, not the deceased's estate, because a four-year-late review had no legal basis.
What this practically means
#Executive summary
#Key legal issues
#Whether there was new and important matter or evidence to warrant review under Order 45 rule 1
No new evidence justified review; the alleged new material (an investigative report on fraud) was not strictly proved and the trust claim was never pleaded or proved at the hearing.
The court held that parties must put all their claims together and not litigate piecemeal. The respondents knew of the properties and the loan at the time of the succession cause. The claim of trust emerged only later and required proof. Fraud needed more than commissioning a report from investigative agencies and could not be sufficiently canvassed in a review application.
Whether the review application was filed without unreasonable delay
The four-year delay in filing the review was inordinate and unexplained, and the Kadhi should not have entertained it.
The judgment sought to be reviewed was delivered in 2012 but the review application was filed in February 2016, four years later, without any explanation. The court reasoned that undoing actions taken within such a period would lead to gross injustice to a party, and Order 45 rule 1 requires an application to be made without unreasonable delay.
Whether the Kadhi's review amounted to sitting on appeal over his own judgment
The review amounted to a fresh hearing and correction of an erroneous view, effectively the Kadhi sitting on his own judgment, which the law does not permit.
Relying on the Supreme Court of India in Ajit Kumar Rath, the court held that review is not a licence for a fresh hearing or for correcting an erroneous view earlier taken; it lies only for correction of a patent error of law or fact apparent on the face of the record. The Kadhi had already rendered a sound, documentary-evidence-based judgment that the properties did not form part of the estate.
Whether the suit properties formed part of the estate of the deceased
The properties had been legitimately transferred to and registered in the name of the appellant long before the deceased's death and did not form part of the estate.
The earlier Kadhi's judgment of 7th September 2012, supported by documentary evidence, found that the plots belonged to the appellant and that the deceased had legitimately transferred them before his death. The High Court found that judgment sound and reinstated it, thereby removing the properties from the estate for distribution.
Legal principles established
#- A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
- Review cannot be used as a vehicle for a fresh hearing or for correcting an erroneous view earlier taken; it lies only for discovery of new and important matter, error apparent on the face of the record, or a sufficiently analogous reason, and must be sought without unreasonable delay.
- Allegations of fraud must be specifically pleaded and strictly proved; they cannot be established for the first time in a review application on the basis of an investigative report.
Court orders
#- 1.The appeal is allowed
- 2.The judgment dated 7th September 2012 finding that plots No. 284/1365 at SOUTH NYAKACH/DIANG'A EAST and plot No. 48 (formerly plot No. 8/813) at Sondu belonged to the appellant is reinstated
- 3.The appeal is allowed with costs
- On appeal from
- Kadhi's Court at Kisumu
- Kisumu Kadhi's Court Succession Cause No. 70 of 2008
- Jurisdiction invoked
- First appellate jurisdiction over rulings of the Kadhi's Court in succession matters (specific constitutional or statutory provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zaid Nassar Ali v Omar Nassar Ali & 2 others [2018] KEELC 496 (KLR)", Case Analysis (2018). Kisumu Kadhi's Court Succession Cause No. 70 of 2008 (Appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/496/eng@2018-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.