HIGH COURT SUCCESSION CAUSE NO. 642 OF 2012
IN THE MATTER OF THE ESTATE OF MUTE KARUIRII alias MUTE S/O KARUIRII (DECEASED)
PETER MAINA MUTE……………………………………….APPLICANT
RULING
1. Before this Court for determination is the Summons for review of Grant dated 1 st July 2025 by which the Applicant PETER MAINA MUTE seeks the following orders;-
“1. THAT the grant dated 16/1/2014 be reviewed by expunging the names of Patrick Wanyua Gateru, Peter Wanjau Muchemi, Elizabeth Thura Muthee and Peris Wangui Waihenya therefrom as they are not beneficiaries to the estate of the Deceased.
2. THAT the costs of this application be provided for.”
2. The application which was premised upon Rule 63 and 73 of the Probate and Administration Rules and all other enabling provisions
of the law was supported by the affidavit of even date sworn by the applicant.
3. The Respondents opposed the summons by way of a Replying Affidavit dated 24 th October 2025 sworn by the 3 rd Respondent Elizabeth Thura Muthee.
4. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 18 th March 2026 whilst the Respondent relied upon her written submissions dated 3 rd February 2026 .
BACKGROUND
5. This succession cause relates to the estate of the late MUTE KARUIRII alias MUTE S/O KARUIRII who died intestate on 20 th July 1993 . A copy of the Death certificate Serial No . 526260 was filed in court on 28 th June 2012 .
6. Following the demise of the Deceased the Applicant Peter Maina Mute on 18 th June 2012 filed a Petition for letters of Administration Intestate naming himself as the sole beneficiary to the estate. A Grant
was then issued to the Applicant on 4 th September 2012 .
7. The Applicant then filed the summons for confirmation of Grant
dated 4 th June 2013 . A certificate of Confirmed Grant was duly issued on 16 th January 2014 . In that confirmed Grant it was indicated that the sole asset of the estate being property known as MUHITO/NJIRUINI/297 was to be distributed according to the schedule as follows;-
“SCHEDULE
MUHITO/NJIRUINI/297 to be shared as follows
a) Peter Maina Mute - 1 and 5/8 acres
b) Patrick Kanyua Gateru - 1/8 of an acre
c) Peter Wanjau Muchemi - ¼ of an acre
d) Elizabeth Thira Muthee - 1/8 of an acre
e) Peris Wangui Waihenya - 1/8 of an acre
8. The Applicant has now filed this application seeking a review of the confirmed grant to exclude the names of all the other beneficiaries as the applicant asserts that he is the sole genuine beneficiary to the estate.
9. The 3 rd Respondent in opposing the summons states that during the hearing for confirmation of Grant, the Applicant informed the court that he had sold part of the suit land to 3 rd parties and indicated that their names should be included in the certificate. The Respondents insist that they are bonafide purchasers from the Applicant and object to the removal of their names from the certificate of confirmed grant.
ANALYSIS AND DETERMINATION
10. The Applicant has come to court seeking to have the confirmed grant issued to him on 16 th January 2014 reviewed.
11. I have considered the application before this court, the reply filed thereto as well as the written submissions filed by both parties.
12. Section 80 of the Civil Procedure Act, Cap 21 Laws of Kenya allows any party who considers themselves aggrieved by a ruling or judgment to file an application for review of the same.
13. Order 45(1) of the Civil Procedure Rules 2010 provides that:-
(1) Any person considering himself aggrieved -
(a) By a decree or order from which an appeal is
allowed, but from which no appeal has been preferred; or
(b) By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgement to the court which passed the decree or made the order without unreasonable delay.
14. From the above provisions, it is clear that section 80 of the Civil Procedure Act grants to courts the power of Review while Order 45 of the Civil Procedure Rules 2010 , sets out the principles which govern applications for review as follows;-
(a) The discovery of new and important matter or evidence which after the exercise of diligence, was not within the knowledge of the Applicant or could not be produced by him at the time when the Decree was passed or the
Order made.
(b) Evidence of some mistake or error apparent on the face of the record.
(c) Any other sufficient reason and that the Application has to be made without unreasonable delay.”
15. Order 45 of the Civil Procedure Rules is imported into the Law of Succession Act by virtue of Rule 63(1 ) of the Probate and Administration Rule s which provide as follows:-
“Save as is in the Act or in these Rules otherwise provided, and subject to any order of the Court or a Registration in any particular case for reasons to be recorded, the following provision of the Civil Procedure Rules, namely Order 5 Rule 2 to 34, Orders 11, 16, 19, 26, 40 45 and 50 (Cap 21 Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.) shall apply so far as relevant proceedings under these Rules.”
16. In John Mundia Njoroge & 9 others v Cecilia Muthoni Njoroge & another [2016] eKLR the court held;
“…….the only provisions of the Civil Procedure Rules
imported to the Law of Succession Act are orders dealing with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attending witnesses, affidavits, review and computation of time. Clearly, order 45 relating to review is one of the Civil Procedure Rules imported into succession practice by rule 63 of the Probate and Administration Rules. An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review set out in order 45 of the Civil Procedure Rules .” [Own emphasis]
17. Section 47 of the Law of Succession Act empowers the High Court to entertain any application and to determine any dispute under the Act and pronounce such decrees and make such orders as may be expedient.
18. At the outset it is important to note that the Grant in question was
confirmed way back in January 2014 . The application seeking
review of that Grant is being made in July 2025 which is approximately eleven (11) years after the Grant had been confirmed. There definitely has been inordinate delay in bringing this application for review. The Applicant has not explained this delay. If he was convinced the Grant required review why wait over ten (10) years to file the application for review.
19. The Applicant seeks to have the Grant which was issued to him reviewed on grounds that he ‘ erroneously’ included the Respondents as beneficiaries and ‘ erroneously’ allocated to the said Respondents a share of the suit property. Essentially the Applicant is pleading that there is a mistake or error on the face of the record.
20. In this regard the mistake or error must be one that is obvious and self-evident not one that would require elaborate argument or interpretation.
21. In Nyamogo & Nyamogo Advocates v Kago [2001] 1 EA 173 the Court of Appeal stated thus:-
“…There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record . Again, if a view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record, though another view was also possible. Mere error or wrong view is certainly no ground for review although it may be for an appeal….”
[Own emphasis]
22. Whilst the Applicant claims that the Respondents ought not to have been included in the distribution of the estate the Respondents insist that they were rightfully included and further insist that they are indeed entitled to a share of the suit property. This cannot be an error on the face of the record as this is an issue which will require lengthy argument from each side to determine. Similarly the question of whether or not the Respondents are genuine beneficiaries of the
estate is not one that can be determined in an application for review.
This is a critical question which will require substantive arguments from both sides, as there are two opinions on the matter.
23. It is utterly inconceivable that the Applicant being the Administrator
of the estate would erroneously include the Respondents and allocate to them a share of the estate only to wake up eleven (11) years later to realise his error.
24. It is quite obvious that the crux of this matter is the dispute between the Applicant and the Respondents over the alleged sale of part of the suit property to the Respondents. This is not a matter that this court sitting as a probate court can determine. Questions relating to ownership of land under Article 162 (2) (b) of the constitution of Kenya 2010 fall under the exclusive jurisdiction of the Environment and Land Court (ELC) .
25. The record shows that the High Court has already determined a Summons for Revocation of Grant dated 10 th November 2022 in which similar issues i.e the question of whether the suit land was ancestral land and the inclusion of the Respondents as beneficiaries had been raised. The Court in a Ruling delivered on 16 th November 2023 dismissed the Summons for revocation thereby confirming the validity of the Grant. The instant application is nothing but a thinly disguised attempt by the Applicant to re-litigate matters which have already been determined by the High Court. This court is ‘functus officio.’
26. The application for review in my finding is not merited. The same is dismissed in its entirety. Costs to be met by the Applicant.
Dated in Nyeri this 10 th day of July 2026.
HIGH COURT SUCCESSION CAUSE NO. 642 OF 2012 RULING Page 1 of 11
IN THE MATTER OF THE ESTATE OF MUTE KARUIRII alias MUTE S/O KARUIRII (DECEASED)
PETER MAINA MUTE……………………………………….APPLICANT
RULING
1. Before this Court for determination is the Summons for review of Grant dated 1 st July 2025 by which the Applicant PETER MAINA MUTE seeks the following orders;-
“1. THAT the grant dated 16/1/2014 be reviewed by expunging the names of Patrick Wanyua Gateru, Peter Wanjau Muchemi, Elizabeth Thura Muthee and Peris Wangui Waihenya therefrom as they are not beneficiaries to the estate of the Deceased.
2. THAT the costs of this application be provided for.”
2. The application which was premised upon Rule 63 and 73 of the Probate and Administration Rules and all other enabling provisions
of the law was supported by the affidavit of even date sworn by the applicant.
3. The Respondents opposed the summons by way of a Replying Affidavit dated 24 th October 2025 sworn by the 3 rd Respondent Elizabeth Thura Muthee.
4. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 18 th March 2026 whilst the Respondent relied upon her written submissions dated 3 rd February 2026 .
BACKGROUND
5. This succession cause relates to the estate of the late MUTE KARUIRII alias MUTE S/O KARUIRII who died intestate on 20 th July 1993 . A copy of the Death certificate Serial No . 526260 was filed in court on 28 th June 2012 .
6. Following the demise of the Deceased the Applicant Peter Maina Mute on 18 th June 2012 filed a Petition for letters of Administration Intestate naming himself as the sole beneficiary to the estate. A Grant
was then issued to the Applicant on 4 th September 2012 .
7. The Applicant then filed the summons for confirmation of Grant
dated 4 th June 2013 . A certificate of Confirmed Grant was duly issued on 16 th January 2014 . In that confirmed Grant it was indicated that the sole asset of the estate being property known as MUHITO/NJIRUINI/297 was to be distributed according to the schedule as follows;-
“SCHEDULE
MUHITO/NJIRUINI/297 to be shared as follows
a) Peter Maina Mute - 1 and 5/8 acres
b) Patrick Kanyua Gateru - 1/8 of an acre
c) Peter Wanjau Muchemi - ¼ of an acre
d) Elizabeth Thira Muthee - 1/8 of an acre
e) Peris Wangui Waihenya - 1/8 of an acre
8. The Applicant has now filed this application seeking a review of the confirmed grant to exclude the names of all the other beneficiaries as the applicant asserts that he is the sole genuine beneficiary to the estate.
9. The 3 rd Respondent in opposing the summons states that during the hearing for confirmation of Grant, the Applicant informed the court that he had sold part of the suit land to 3 rd parties and indicated that their names should be included in the certificate. The Respondents insist that they are bonafide purchasers from the Applicant and object to the removal of their names from the certificate of confirmed grant.
ANALYSIS AND DETERMINATION
10. The Applicant has come to court seeking to have the confirmed grant issued to him on 16 th January 2014 reviewed.
11. I have considered the application before this court, the reply filed thereto as well as the written submissions filed by both parties.
12. Section 80 of the Civil Procedure Act, Cap 21 Laws of Kenya allows any party who considers themselves aggrieved by a ruling or judgment to file an application for review of the same.
13. Order 45(1) of the Civil Procedure Rules 2010 provides that:-
(1) Any person considering himself aggrieved -
(a) By a decree or order from which an appeal is
allowed, but from which no appeal has been preferred; or
(b) By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgement to the court which passed the decree or made the order without unreasonable delay.
14. From the above provisions, it is clear that section 80 of the Civil Procedure Act grants to courts the power of Review while Order 45 of the Civil Procedure Rules 2010 , sets out the principles which govern applications for review as follows;-
(a) The discovery of new and important matter or evidence which after the exercise of diligence, was not within the knowledge of the Applicant or could not be produced by him at the time when the Decree was passed or the
Order made.
(b) Evidence of some mistake or error apparent on the face of the record.
(c) Any other sufficient reason and that the Application has to be made without unreasonable delay.”
15. Order 45 of the Civil Procedure Rules is imported into the Law of Succession Act by virtue of Rule 63(1 ) of the Probate and Administration Rule s which provide as follows:-
“Save as is in the Act or in these Rules otherwise provided, and subject to any order of the Court or a Registration in any particular case for reasons to be recorded, the following provision of the Civil Procedure Rules, namely Order 5 Rule 2 to 34, Orders 11, 16, 19, 26, 40 45 and 50 (Cap 21 Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.) shall apply so far as relevant proceedings under these Rules.”
16. In John Mundia Njoroge & 9 others v Cecilia Muthoni Njoroge & another [2016] eKLR the court held;
“…….the only provisions of the Civil Procedure Rules
imported to the Law of Succession Act are orders dealing with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attending witnesses, affidavits, review and computation of time. Clearly, order 45 relating to review is one of the Civil Procedure Rules imported into succession practice by rule 63 of the Probate and Administration Rules. An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review set out in order 45 of the Civil Procedure Rules .” [Own emphasis]
17. Section 47 of the Law of Succession Act empowers the High Court to entertain any application and to determine any dispute under the Act and pronounce such decrees and make such orders as may be expedient.
18. At the outset it is important to note that the Grant in question was
confirmed way back in January 2014 . The application seeking
review of that Grant is being made in July 2025 which is approximately eleven (11) years after the Grant had been confirmed. There definitely has been inordinate delay in bringing this application for review. The Applicant has not explained this delay. If he was convinced the Grant required review why wait over ten (10) years to file the application for review.
19. The Applicant seeks to have the Grant which was issued to him reviewed on grounds that he ‘ erroneously’ included the Respondents as beneficiaries and ‘ erroneously’ allocated to the said Respondents a share of the suit property. Essentially the Applicant is pleading that there is a mistake or error on the face of the record.
20. In this regard the mistake or error must be one that is obvious and self-evident not one that would require elaborate argument or interpretation.
21. In Nyamogo & Nyamogo Advocates v Kago [2001] 1 EA 173 the Court of Appeal stated thus:-
“…There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record . Again, if a view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record, though another view was also possible. Mere error or wrong view is certainly no ground for review although it may be for an appeal….”
[Own emphasis]
22. Whilst the Applicant claims that the Respondents ought not to have been included in the distribution of the estate the Respondents insist that they were rightfully included and further insist that they are indeed entitled to a share of the suit property. This cannot be an error on the face of the record as this is an issue which will require lengthy argument from each side to determine. Similarly the question of whether or not the Respondents are genuine beneficiaries of the
estate is not one that can be determined in an application for review.
This is a critical question which will require substantive arguments from both sides, as there are two opinions on the matter.
23. It is utterly inconceivable that the Applicant being the Administrator
of the estate would erroneously include the Respondents and allocate to them a share of the estate only to wake up eleven (11) years later to realise his error.
24. It is quite obvious that the crux of this matter is the dispute between the Applicant and the Respondents over the alleged sale of part of the suit property to the Respondents. This is not a matter that this court sitting as a probate court can determine. Questions relating to ownership of land under Article 162 (2) (b) of the constitution of Kenya 2010 fall under the exclusive jurisdiction of the Environment and Land Court (ELC) .
25. The record shows that the High Court has already determined a Summons for Revocation of Grant dated 10 th November 2022 in which similar issues i.e the question of whether the suit land was ancestral land and the inclusion of the Respondents as beneficiaries had been raised. The Court in a Ruling delivered on 16 th November 2023 dismissed the Summons for revocation thereby confirming the validity of the Grant. The instant application is nothing but a thinly disguised attempt by the Applicant to re-litigate matters which have already been determined by the High Court. This court is ‘functus officio.’
26. The application for review in my finding is not merited. The same is dismissed in its entirety. Costs to be met by the Applicant.
Dated in Nyeri this 10 th day of July 2026.
HIGH COURT SUCCESSION CAUSE NO. 642 OF 2012 RULING Page 1 of 11