In re Estate of Mbau Kinyuru (Deceased) (Succession Cause 144 of 2017)  KEHC 16509 (KLR) (20 December 2022) (Ruling)
Neutral citation:  KEHC 16509 (KLR)
Republic of Kenya
Succession Cause 144 of 2017
CM Kariuki, J
December 20, 2022
IN THE MATTER OF THE ESTATE OF MBAU KINYURU ALIAS MBAU KINYURU NJUGUNA (DECEASED)
Jonathan Njuguna Mbau
Rachael Njoki Mbau
1.The matter before court is an application by applicant herein brought through the summons dated September 14, 2022, seeking the following orders: -
2.The application is premised on the grounds set forth in the affidavit of Jonathan Njuguna Mbau as follows: -
3.In response, the respondent filed a replying affidavit deponed by Rachael Njoki Mbau, stating as follows
4.Parties were directed to canvass applications via submissions, but only the respondent filed the same, but applicant’s submissions were not filed at the time of preparing the instant ruling.
6.The respondent reiterated that this court dismissed the summons dated December 6, 2021, and in the circumstances, prayer no 5 of the summons was directly in issue. The court, having rendered its decision, did not reserve prayer 5 for ruling on another date; therefore, thus court lacks jurisdiction to sit on appeal of its own decision.
7.Reliance was placed on Osman Erdinc Elsek v Inspector General of National Police Service & 3 others  eKLR, Nandlal Jivraj Shah & 2 others v Kingfisher Agencies  eKLR, Mary Njeri Gakunga & 2 others v Middle East Bank Kenya  eKLR, Sylas Njeru M’rithaa Thaara  eKLR & Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende  eKLR.
Analysis And Determination
8.From the record, the court considered and determined the application dated December 6, 2021 vide the ruling dated July 28, 2022. The application therein was found to be lacking in merit and was therefore dismissed in totality. Consequently, I find it peculiar that the applicant contends that there is an error apparent of the face of the record.
9.In addition, I agree with the respondent that the parties substantively addressed by way of written submissions the issues raised in prayer 5 of the summons dated December 6, 2021, which was reliant upon prayer no 3, which was spent at the time of delivery of the ruling. Upon considering the entire summons, the court did not find merit in any of the prayers sought, and as such, there is no error apparent on the face of the record as alleged by the applicant.
10.I find that if the respondents were unhappy with the court’s finding, they should have lodged an appeal instead of hoodwinking the court into appealing its own decision by alleging that the same was not considered. The doctrine of functus officio prevents this court from revisiting the matter, which is the basis of their instant application on a merit-based engagement, considering that it had already issued a ruling. In Menginya Salim Murgani v Kenya Revenue Authority  eKLR, the Supreme Court held that:
11.That being the case, I find this application lacks merit and make the orders;(i)The instant application is hereby dismissed with costs to the respondents.
DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 20THDAY OF DECEMBER 2022........................................CHARLES KARIUKIJUDGE