The application dated 27th February 2025 was brought under certificate of urgency seeking pursuant to Rule 63 of the Probate and Administration rules and Sections IA, 1B, 34, & 80 of the Civil Procedure Act, Order 45 Rule (I), (2), (3), Order 51 Rule I of the Civil Procedure, Article 53 of the Constitution of Kenya
THAT, this Honourable Court be pleased to review its judgment delivered on 20th October, 2023 and orders issued therein by varying the order issued for the sharing of LR AGUTHI/GATITU/ 1744 being the first house 9-rental rooms, 2nd house 9 rental rooms and house the matrimonial home and 10 rental rooms, with the third house getting the entire share of L.R AGUTHI/GATITU/ 1744 absolutely.
THAT there be a stay of the transmission of the said L.R AGUTHI/GATITU/1744 as per the judgment delivered on 20th October, 2023 pending the hearing and determination of this application
THAT, the costs of this application be provided for. WHICH APPLICATION is based upon the following grounds: -
That vide judgment delivered on 20th October, 2023, court directed that LR, No. Aguthi/Gatitu/1744 be shared as follows: first House 9 rental rooms, second house 9 rental rooms and third house Matrimonial home and 10 rental rooms,
That there existed no matrimonial home within the said LR. No Aguthi/Gatitu/ 1744
That the applicants and their mother have been in occupation of the said rental rooms where they have been residing
That some of the rental rooms are wooden houses which are not habitable at all.
That the mode of distribution as ordered by court cannot be implemented owing to the status of the said property.
That it is not possible for LR. No Aguthi/Gatitu/1744 to be shared among the three houses as directed by court.
That the 1st and 2nd houses have each a matrimonial home and rental houses which is not the case with the 3rd house.
The application was supported by the affidavit of JOHN WAIVOHI ABOGE, PATRICK AWALLO ABOGE and AGNES ATIENO ABOGE and other grounds to be adduced at the hearing hereof.
In the supporting affidavit JOHN WANJIHI ABOGE, PATRICK AWALIO ABOGE and AGNES ATIENO ABOGE averred that they are children of the deceased from the third house hence beneficiaries of the estate herein.
THAT vide judgment delivered on 20th October, 2023 court arrived at a wrong conclusion that IR. NO AGUTHI/GATITU/ 1744 had a matrimonial home and 28 rental rooms.
They averred that due to the said wrong impression, the Court directed that property LR. NO. AGUTHI/GATITU/1744 be shared as follows, first house 9 rental rooms, second house 9 rental rooms and third house the matrimonial home and 10 rental units. Attached to herein and marked JWA- 1 is a copy of the judgment.
They asserted that there is no matrimonial home within the said LR. NO AGUTHI/GATITU / 1744 and that due to the fact that there is no matrimonial home on IR. NO AGUTHI/GATITU/ 1744 their mother is in occupation of three houses while they are in occupation of four other houses. They attached pictures of the said houses.
The Applicants further averred that first and the second houses each have matrimonial homes and rental houses which is not the case with the 3rd house.
They also claimed that the order issued in regards to sharing IR. NO AGUTHI/GATITU/ 1744 among the three houses is not practically possible owing to the fact that there is no matrimonial home and due to the fact that they are in occupation of the said rental houses within the suit property. Further that the order again cannot be implemented owing to the fact that the rental units within the said premises are both permanent and wooden houses and court did not direct as to whom and how the sharing was to be done.
The deponents also argued that for there to be equity in sharing of the deceased properties among the beneficiaries it is only mete and just that LR. NO AGUTHI/GATITU/ 1744 be given to the third house absolutely as the Respondent failed to disclose to court that the 1st and 2nd houses have matrimonial homes and rental units given to them which is not the case with the 3rd house as indicated on paragraph I1 of the judgment delivered on 20th October, 2023.
THAT transmission of the properties to their respective beneficiaries is not possible owing to the fact that the order cannot be implemented as issued.
THAT there is need to review the said orders to ensure smooth transmission of the properties to the respective beneficiaries.
That there is need for the said orders to be reviewed.
In its judgment distributing the estate the trial court rendered itself as follows regarding the property in contention:
On the subdivision of the alleged 28 rentals rooms on L.R. No. Aguthi/Gatitu/1744. There is no pictorial evidence presented to this court that there are actual rental rooms situate on the said property. From the testimony of all the parties, it seems that .they are rental rooms. This is the same property where the third wife lives as her matrimonial home. The title deed dated 13/7/2015 shows that the land is 0.10 Ha, an equivalent of 0.24 Acres. This court shall give a benefit of doubt and ride on the assumption that there_aresome28xentaLrooms on L.R. No. Aguthi/Gatitu 1744. The first and second houses will each get 9 rental rooms and the third house will get 10 rental rooms. Each party to give their specific details to their respective tenants on how they wish their rent to be remitted.
The court then proceeded to distribute the said property as follows:
First House - Orpha Adongo Aboge
L.R. No. Aguthi/Gatitu/1744 - 9 rental rooms
Second House - Beatrice Wamuyu Aboge
L.R. No. Aguthi/Gatitu/1744 - 9 rental rooms.
Third House - Lucy Wambui Aboge
i. L.R. No. Aguthi/Gatitu/1744- her matrimonial home and 10 rental rooms.
ii. Plot Number 119 - Embakasi Nairobi
iii. L.R. No. 2538 - Endama Farm (half share)
iv. iv. Monies at Absa Bank Account Number 000XXXX730 Nyeri Branch.
The Applicant’s Counsel filed submissions dated 7th August 2025 and argued that the judgment dated 20th October, 2023, on the distribution of AGUTHI/GATITU/ 1744 one of the property forming part of the deceased estate was reached without any evidence as to the state and nature of the properties within AGUTHI/GATITU/ 1744 without any evidence of the state of the rental units.
That the court further took the assumption that there was a matrimonial home on the said suit land. It was submitted that there is no matrimonial home on the said AGUTHI/GATITU/1744 and the applicant's mother resides on three of the said rental units which she considers as home and the Applicants are in occupation of four other rooms.
It was submitted that the trial court in arriving at the said decision was not aware of that particular fact, and further the state of some of the said rental houses are in deplorable state and cannot be occupied without first being refurbished as evidenced by the pictures annexed to the supporting affidavit herein. That the full material fact in regards to the state of the said rental houses was not disclosed to court, the fact that some of the units are wooden structures was never disclosed.
That in the circumstances, it was submitted that the mode of distribution as issued by the Court was unfair to the third house.
The Applicants’ s Counsel cited the holding in Nyeri High Court (Ngaa, J) Succession Cause No. 123 of 1999, Rahab Njeri Kariuki v Joyce Waruguru Kariuki & 2 others to support their position that in a polygamy set up the distribution of the deceased estate should be pegged on fairness and equality. It was further submitted that the court observed that in sharing the net estate of an intestate polygamous deceased person, the court exercises a discretion and is required to bear in mind the principles of fairness and equity and not equality among the beneficiaries.
It was contended that there is need for this court to review the orders issued in regards to distribution of the estate and more so in regards to AGUTHI/GATITU/1744 which was distributed among the three houses yet on the face of it the same cannot be shared owing to its state.
It was also submitted that the Respondents have equally been given a fair share of the estate which includes matrimonial homes and rental houses and thus the said principle should cut across all the three houses. The fact the Respondents stated that there existed 28 rental units and a matrimonial home which is not the case was misleading to the trial court. The Respondent ought to have given the true account of the state and nature of the said rental units. Failure to do so was aimed at misleading the trail court for there to be unjust distribution of the estate.
The court was urged to review the order made distributing AGUTHI/GATITU/1744 for there to be just and fair distribution of the estate among all the beneficiaries.as it cannot be implemented owing to the facts as explained above.
It was submitted that the Applicants had met the threshold for granting of the orders sought and the said application should be allowed as prayed as the court arrived at a wrong conclusion based on misleading information given. The court was urged that for there to be just and equitable distribution of the estate, the said AGUTHI/GATITU/ 1744 should be given to the third house absolutely.
The Respondents did not respond to the application or even file submissions despite the fact that Mr. Ogutu Mboya was in court on 9th October 2025.
ANALYSIS AND DETERMINATION
From the application, the grounds and the Applicants’ submissions the sole issue for determination is whether the Applicants’ have met the legal threshold for the grant of orders for review of the judgment delivered on 20th October 2023.
By virtue of Rule 63 of the Probate and Administration Rules, the provisions of section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules apply to succession proceedings. Under Order 45 rule 1, a party seeking review must demonstrate the existence of at least one of the following grounds:
(a) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced at the time the decree was passed;
(b) some mistake or error apparent on the face of the record; or
(c) any other sufficient reason.
It is settled law that review jurisdiction is limited in scope and is not intended to enable the Court to rehear a matter on its merits or to sit on appeal over its own decision. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal emphatically stated that a review cannot be granted on the basis that the court proceeded on an incorrect view of the law or misapprehended the facts, as such matters properly belong to an appeal.
The Applicants’ complaint is anchored on the assertion that the Court proceeded on an incorrect factual premise regarding the existence of a matrimonial home and the nature and condition of the rental units on L.R. No. Aguthi/Gatitu/1744. These matters, however, were not new or supervening facts arising after the delivery of the judgment. They are matters that existed at the time of hearing and were within the knowledge of the parties. With the exercise of due diligence, the Applicants could have tendered evidence on the nature, condition and occupation of the structures during the hearing of the succession cause.
The alleged error complained of does not amount to an error apparent on the face of the record. In Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR, the Court of Appeal reaffirmed that an error apparent on the face of the record must be obvious and self-evident and should not require a detailed examination of the evidence or a long-drawn process of reasoning. An error apparent must be self evident and obvious, and must not require an elaborate examination of evidence or a re argument of the case. Whether or not the property comprised a matrimonial home and the precise number or condition of rental units were matters of evidence and factual evaluation. Any alleged wrong conclusion on such matters is a proper subject for appeal, not review.
The Applicants further rely on the ground of “any other sufficient reason”, contending that the orders made are incapable of implementation. The phrase “any other sufficient reason” has been consistently construed ejusdem generis with the other grounds set out under Order 45 rule 1 and does not permit the court to reopen or re-litigate issues that were, or ought to have been, canvassed at the hearing. This Court is not persuaded that the alleged impracticability of implementation, arising from contested factual matters that were available at the time of trial, constitutes a sufficient reason within the meaning of Order 45. The Applicants are, in effect, inviting the Court to substantially alter the substance of its judgment by re distributing the estate and divesting the first and second houses of their shares in L.R. No. Aguthi/Gatitu/1744. Such relief lies outside the narrow confines of the Court’s review jurisdiction and would amount to the Court sitting on appeal over its own judgment, contrary to the doctrine of finality of litigation.
The fact that the application is unopposed does not absolve the Applicants from the obligation to satisfy the statutory threshold for review. Jurisdiction cannot be conferred by default or acquiescence of the opposing parties.
The Court finds that the Applicants have failed to demonstrate the existence of any of the grounds stipulated under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules to warrant a review of the judgment delivered on 20th October 2023.
The application dated 27th February 2025 lacks merit and is hereby dismissed. The prayer for stay of transmission of L.R. No. Aguthi/Gatitu/1744 is declined. In the circumstances that this succession cause involves family members, each party shall bear their own costs.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 29TH DAY OF JANUARY, 2026.
THAT, this Honourable Court be pleased to review its judgment delivered on 20th October, 2023 and orders issued therein by varying the order issued for the sharing of LR AGUTHI/GATITU/ 1744 being the first house 9-rental rooms, 2nd house 9 rental rooms and house the matrimonial home and 10 rental rooms, with the third house getting the entire share of L.R AGUTHI/GATITU/ 1744 absolutely.
THAT there be a stay of the transmission of the said L.R AGUTHI/GATITU/1744 as per the judgment delivered on 20th October, 2023 pending the hearing and determination of this application
THAT, the costs of this application be provided for. WHICH APPLICATION is based upon the following grounds: -
That vide judgment delivered on 20th October, 2023, court directed that LR, No. Aguthi/Gatitu/1744 be shared as follows: first House 9 rental rooms, second house 9 rental rooms and third house Matrimonial home and 10 rental rooms,
That there existed no matrimonial home within the said LR. No Aguthi/Gatitu/ 1744
That the applicants and their mother have been in occupation of the said rental rooms where they have been residing
That some of the rental rooms are wooden houses which are not habitable at all.
That the mode of distribution as ordered by court cannot be implemented owing to the status of the said property.
That it is not possible for LR. No Aguthi/Gatitu/1744 to be shared among the three houses as directed by court.
That the 1st and 2nd houses have each a matrimonial home and rental houses which is not the case with the 3rd house.
The application was supported by the affidavit of JOHN WAIVOHI ABOGE, PATRICK AWALLO ABOGE and AGNES ATIENO ABOGE and other grounds to be adduced at the hearing hereof.
In the supporting affidavit JOHN WANJIHI ABOGE, PATRICK AWALIO ABOGE and AGNES ATIENO ABOGE averred that they are children of the deceased from the third house hence beneficiaries of the estate herein.
THAT vide judgment delivered on 20th October, 2023 court arrived at a wrong conclusion that IR. NO AGUTHI/GATITU/ 1744 had a matrimonial home and 28 rental rooms.
They averred that due to the said wrong impression, the Court directed that property LR. NO. AGUTHI/GATITU/1744 be shared as follows, first house 9 rental rooms, second house 9 rental rooms and third house the matrimonial home and 10 rental units. Attached to herein and marked JWA- 1 is a copy of the judgment.
They asserted that there is no matrimonial home within the said LR. NO AGUTHI/GATITU / 1744 and that due to the fact that there is no matrimonial home on IR. NO AGUTHI/GATITU/ 1744 their mother is in occupation of three houses while they are in occupation of four other houses. They attached pictures of the said houses.
The Applicants further averred that first and the second houses each have matrimonial homes and rental houses which is not the case with the 3rd house.
They also claimed that the order issued in regards to sharing IR. NO AGUTHI/GATITU/ 1744 among the three houses is not practically possible owing to the fact that there is no matrimonial home and due to the fact that they are in occupation of the said rental houses within the suit property. Further that the order again cannot be implemented owing to the fact that the rental units within the said premises are both permanent and wooden houses and court did not direct as to whom and how the sharing was to be done.
The deponents also argued that for there to be equity in sharing of the deceased properties among the beneficiaries it is only mete and just that LR. NO AGUTHI/GATITU/ 1744 be given to the third house absolutely as the Respondent failed to disclose to court that the 1st and 2nd houses have matrimonial homes and rental units given to them which is not the case with the 3rd house as indicated on paragraph I1 of the judgment delivered on 20th October, 2023.
THAT transmission of the properties to their respective beneficiaries is not possible owing to the fact that the order cannot be implemented as issued.
THAT there is need to review the said orders to ensure smooth transmission of the properties to the respective beneficiaries.
That there is need for the said orders to be reviewed.
In its judgment distributing the estate the trial court rendered itself as follows regarding the property in contention:
On the subdivision of the alleged 28 rentals rooms on L.R. No. Aguthi/Gatitu/1744. There is no pictorial evidence presented to this court that there are actual rental rooms situate on the said property. From the testimony of all the parties, it seems that .they are rental rooms. This is the same property where the third wife lives as her matrimonial home. The title deed dated 13/7/2015 shows that the land is 0.10 Ha, an equivalent of 0.24 Acres. This court shall give a benefit of doubt and ride on the assumption that there_aresome28xentaLrooms on L.R. No. Aguthi/Gatitu 1744. The first and second houses will each get 9 rental rooms and the third house will get 10 rental rooms. Each party to give their specific details to their respective tenants on how they wish their rent to be remitted.
The court then proceeded to distribute the said property as follows:
First House - Orpha Adongo Aboge
L.R. No. Aguthi/Gatitu/1744 - 9 rental rooms
Second House - Beatrice Wamuyu Aboge
L.R. No. Aguthi/Gatitu/1744 - 9 rental rooms.
Third House - Lucy Wambui Aboge
i. L.R. No. Aguthi/Gatitu/1744- her matrimonial home and 10 rental rooms.
ii. Plot Number 119 - Embakasi Nairobi
iii. L.R. No. 2538 - Endama Farm (half share)
iv. iv. Monies at Absa Bank Account Number 000XXXX730 Nyeri Branch.
The Applicant’s Counsel filed submissions dated 7th August 2025 and argued that the judgment dated 20th October, 2023, on the distribution of AGUTHI/GATITU/ 1744 one of the property forming part of the deceased estate was reached without any evidence as to the state and nature of the properties within AGUTHI/GATITU/ 1744 without any evidence of the state of the rental units.
That the court further took the assumption that there was a matrimonial home on the said suit land. It was submitted that there is no matrimonial home on the said AGUTHI/GATITU/1744 and the applicant's mother resides on three of the said rental units which she considers as home and the Applicants are in occupation of four other rooms.
It was submitted that the trial court in arriving at the said decision was not aware of that particular fact, and further the state of some of the said rental houses are in deplorable state and cannot be occupied without first being refurbished as evidenced by the pictures annexed to the supporting affidavit herein. That the full material fact in regards to the state of the said rental houses was not disclosed to court, the fact that some of the units are wooden structures was never disclosed.
That in the circumstances, it was submitted that the mode of distribution as issued by the Court was unfair to the third house.
The Applicants’ s Counsel cited the holding in Nyeri High Court (Ngaa, J) Succession Cause No. 123 of 1999, Rahab Njeri Kariuki v Joyce Waruguru Kariuki & 2 others to support their position that in a polygamy set up the distribution of the deceased estate should be pegged on fairness and equality. It was further submitted that the court observed that in sharing the net estate of an intestate polygamous deceased person, the court exercises a discretion and is required to bear in mind the principles of fairness and equity and not equality among the beneficiaries.
It was contended that there is need for this court to review the orders issued in regards to distribution of the estate and more so in regards to AGUTHI/GATITU/1744 which was distributed among the three houses yet on the face of it the same cannot be shared owing to its state.
It was also submitted that the Respondents have equally been given a fair share of the estate which includes matrimonial homes and rental houses and thus the said principle should cut across all the three houses. The fact the Respondents stated that there existed 28 rental units and a matrimonial home which is not the case was misleading to the trial court. The Respondent ought to have given the true account of the state and nature of the said rental units. Failure to do so was aimed at misleading the trail court for there to be unjust distribution of the estate.
The court was urged to review the order made distributing AGUTHI/GATITU/1744 for there to be just and fair distribution of the estate among all the beneficiaries.as it cannot be implemented owing to the facts as explained above.
It was submitted that the Applicants had met the threshold for granting of the orders sought and the said application should be allowed as prayed as the court arrived at a wrong conclusion based on misleading information given. The court was urged that for there to be just and equitable distribution of the estate, the said AGUTHI/GATITU/ 1744 should be given to the third house absolutely.
The Respondents did not respond to the application or even file submissions despite the fact that Mr. Ogutu Mboya was in court on 9th October 2025.
ANALYSIS AND DETERMINATION
From the application, the grounds and the Applicants’ submissions the sole issue for determination is whether the Applicants’ have met the legal threshold for the grant of orders for review of the judgment delivered on 20th October 2023.
By virtue of Rule 63 of the Probate and Administration Rules, the provisions of section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules apply to succession proceedings. Under Order 45 rule 1, a party seeking review must demonstrate the existence of at least one of the following grounds:
(a) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced at the time the decree was passed;
(b) some mistake or error apparent on the face of the record; or
(c) any other sufficient reason.
It is settled law that review jurisdiction is limited in scope and is not intended to enable the Court to rehear a matter on its merits or to sit on appeal over its own decision. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal emphatically stated that a review cannot be granted on the basis that the court proceeded on an incorrect view of the law or misapprehended the facts, as such matters properly belong to an appeal.
The Applicants’ complaint is anchored on the assertion that the Court proceeded on an incorrect factual premise regarding the existence of a matrimonial home and the nature and condition of the rental units on L.R. No. Aguthi/Gatitu/1744. These matters, however, were not new or supervening facts arising after the delivery of the judgment. They are matters that existed at the time of hearing and were within the knowledge of the parties. With the exercise of due diligence, the Applicants could have tendered evidence on the nature, condition and occupation of the structures during the hearing of the succession cause.
The alleged error complained of does not amount to an error apparent on the face of the record. In Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR, the Court of Appeal reaffirmed that an error apparent on the face of the record must be obvious and self-evident and should not require a detailed examination of the evidence or a long-drawn process of reasoning. An error apparent must be self evident and obvious, and must not require an elaborate examination of evidence or a re argument of the case. Whether or not the property comprised a matrimonial home and the precise number or condition of rental units were matters of evidence and factual evaluation. Any alleged wrong conclusion on such matters is a proper subject for appeal, not review.
The Applicants further rely on the ground of “any other sufficient reason”, contending that the orders made are incapable of implementation. The phrase “any other sufficient reason” has been consistently construed ejusdem generis with the other grounds set out under Order 45 rule 1 and does not permit the court to reopen or re-litigate issues that were, or ought to have been, canvassed at the hearing. This Court is not persuaded that the alleged impracticability of implementation, arising from contested factual matters that were available at the time of trial, constitutes a sufficient reason within the meaning of Order 45. The Applicants are, in effect, inviting the Court to substantially alter the substance of its judgment by re distributing the estate and divesting the first and second houses of their shares in L.R. No. Aguthi/Gatitu/1744. Such relief lies outside the narrow confines of the Court’s review jurisdiction and would amount to the Court sitting on appeal over its own judgment, contrary to the doctrine of finality of litigation.
The fact that the application is unopposed does not absolve the Applicants from the obligation to satisfy the statutory threshold for review. Jurisdiction cannot be conferred by default or acquiescence of the opposing parties.
The Court finds that the Applicants have failed to demonstrate the existence of any of the grounds stipulated under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules to warrant a review of the judgment delivered on 20th October 2023.
The application dated 27th February 2025 lacks merit and is hereby dismissed. The prayer for stay of transmission of L.R. No. Aguthi/Gatitu/1744 is declined. In the circumstances that this succession cause involves family members, each party shall bear their own costs.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 29TH DAY OF JANUARY, 2026.