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High CourtDismissed· [2020] KEHC 9765 (KLR)

In re Estate of the late Kariuki Gachau - Hannah Wairimu Kariuki & another (Protestors) v Respondent

High Court of Kenya
27 May 2020
ALALI-ARONI
359 words in judgment
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The bottom line

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If you disagree with a court ruling, you must appeal it, not file a review application, unless new evidence emerges.

What this practically means

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Executive summary

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This was a review application dated 27 July 2018 filed by the 1st Protestor, Hannah Wairimu Kariuki, in a succession matter, seeking to review, vary and/or set aside orders made by Musyoka J on 26 February 2016. The orders under challenge had adopted a consent order, and the applicant contended that the consent was recorded without sufficient facts, through misrepresentation or ignorance of undisputed material facts, and without her authority. The 2nd Protestor supported the application, while the Respondent opposed it through an affidavit dated 4 September 2017, arguing that the issue was res judicata, having been considered by Musyoka J in his ruling of 6 February 2016. The court found no dispute that the issue of the impugned consent had been raised in the application for revocation of grant and considered by Musyoka J. Applying Order 45 of the Civil Procedure Rules, Ali-Aroni J held that review requires discovery of new and important matter or evidence, a mistake or error apparent on the face of the order, or other sufficient reason. The applicant demonstrated none: nothing new had been discovered, all matters having been raised before and extensively considered by Musyoka J. The court noted that the applicant's remedy, if aggrieved, was an appeal, and that a court cannot sit on appeal over a matter decided by a court of concurrent jurisdiction; there must also be an end to litigation. The application was dismissed with costs on 27 May 2020.

Key legal issues

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01

Whether grounds for review under Order 45 were established

Holding

Application dismissed - no new matter discovered; all issues were raised and considered by Musyoka J

Reasoning

The impugned consent was raised in the revocation of grant application and considered in Musyoka J's ruling of 26 February 2016. The applicant demonstrated no new evidence, mistake, or error apparent on the face of the order. The proper remedy for dissatisfaction with that ruling was an appeal, not a review.

p. 2
02

Res judicata / finality of litigation

Holding

The issue was res judicata, having been considered by Musyoka J in his ruling of 6 February 2016

Reasoning

The Respondent's replying affidavit established that the issue of the impugned consent was raised in the revocation of grant application and considered by Musyoka J. Re-litigating the same issue offends the principle that there must be an end to litigation.

p. 2

Legal principles established

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  • Review requires discovery of new and important matter or evidence, an error apparent on the face of the record, or any other sufficient reason
  • A court cannot sit on appeal over a matter decided by a court of concurrent jurisdiction; the remedy is appeal
  • There must be an end to litigation; parties should not raise similar issues severally

Court orders

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  1. 1.Application dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45
Jurisdiction invoked
Review jurisdiction under Order 45 of the Civil Procedure Rules in a succession (revocation of grant) matter

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of the late Kariuki Gachau - Hannah Wairimu Kariuki & another (Protestors) v Respondent", Case Analysis (2020). . Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.