1. Before this court is the Notice of Motion dated 15th May 2026 brought by the Administrator/Applicant seeking review and setting aside of the ruling delivered on 07th May 2026 together with consequential orders preserving the status quo pending hearing and determination of the succession cause. The application is brought under Order 45 Rules 1 and 2 of the Civil Procedure Rules, Section 80 of the Civil Procedure Act and all enabling provisions of the law.
2. The application is supported by the Supporting Affidavit sworn by ROSE MORURI ARIAGA on 15th May 2026 and the Supplementary Affidavit sworn on 21st May 2026.
3. The Applicant contends that the ruling delivered on 07th May 2026 contained an error apparent on the face of the record by directing that MARGARET KERUBO ONCHARI be involved in the operation and control of the joint account intended for preservation of rental proceeds from the estate property whereas she is not an administrator appointed under the Grant of Letters of Administration Intestate issued by this court on 09th February 2026. The Applicant further contends that the court failed to consider her Replying Affidavit dated 30th March 2026 prior to issuance of the impugned ruling.
4. The application is opposed through the Replying Affidavit sworn by Margaret Kerubo Onchari on 20th May 2026 in which she deponed that the application fails to meet the threshold for review under Order 45 of the Civil Procedure Rules and is merely intended to frustrate compliance with the preservatory orders issued by the court on 07th May 2026. She further deponed that as representative of the 1st household and a co-administrator, she was the proper person to jointly operate the escrow account alongside the Respondent/Applicant since the 2nd Petitioner resides and works in the United Kingdom and would not practically act as a day-to-day signatory to a local rent collection account.
5. The Petitioners/Respondents further contended that the Applicant had previously acknowledged through her advocates in a letter dated 21st February 2024 addressed to the Kajiado County Dispute Resolution Committee that Plot No. A221 Noonkopir formed part of the estate of the deceased and could only be dealt with through succession proceedings. They therefore accused the Applicant of approbating and reprobating by subsequently asserting exclusive ownership over the property.
6. The Respondents also deponed that the Applicant unlawfully diverted rental income from the suit property into her personal M-PESA Paybill and bank accounts without authority of the court or consent of the 1st household, thereby amounting to intermeddling contrary to Section 45 of the Law of Succession Act. They maintained that the preservatory orders issued on 07th May 2026 were necessary for preservation of the estate pending determination of the succession cause.
7. The Applicant filed written submissions dated 21st May 2026 through Linet Miencha & Co. Advocates. Counsel submitted that the impugned orders granted operational authority over estate assets to a person who was not an administrator appointed under the Grant of Letters of Administration Intestate issued by this court on 09th February 2026.
8. The Applicant relied on Paul Mwaniki v NHIF Board of Management [2020] eKLR and submitted that powers relating to management and administration can only vest in persons lawfully clothed with authority under the applicable legal framework and that such authority in succession proceedings flows strictly from the grant issued by the probate court. The Applicant further relied on Bhimji Karsan Ltd v National Bank of Kenya Ltd [2015] eKLR and argued that preservatory and status quo orders are intended to preserve the substratum of the dispute pending hearing and determination of the suit.
9. In the written submissions dated 20th May 2026 filed by by M3N Chambers LLP, counsel for the Respondents submitted that the application does not meet the threshold for review under Order 45 Rule 1 of the Civil Procedure Rules and was merely an attempt to re-litigate issues already determined by the court. Reliance was placed on Muyodi v Industrial & Commercial Development Corporation & Another [2006] 1 EA 243 and National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR. Counsel further submitted that questions relating to ownership of Plot No. A221 Noonkopir fall within the jurisdiction of the Environment and Land Court and cannot be conclusively determined through a review application in succession proceedings.
10. I have considered the application, affidavits, annextures, the ruling delivered on 07th May 2026 and the rival submissions filed by the parties.
11. The jurisdiction of this court to review its orders is donated by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
12. Under Order 45 Rule 1 of the Civil Procedure Rules, review may issue where there is discovery of new and important matter, mistake or error apparent on the face of the record or for any other sufficient reason.
13. The Applicant also complained that the court failed to consider her Replying Affidavit dated 30thMarch 2026 prior to delivery of the ruling of 07th May 2026. However, failure by a court to appreciate or properly evaluate evidence placed before it does not ordinarily constitute a ground for review but may properly found a basis for appeal.
14. Nevertheless, upon reconsideration of the material placed before this court, the Grant of Letters of Administration Intestate issued on 09th February 2026 shows that the administrators appointed by this court are Rose Moruri Ariaga and Nemwel Keoro Ariaga and that Margaret Kerubo Onchari was not appointed as an administrator of the estate.
15. In the ruling delivered on 07th May 2026, this court directed that the joint deposit interest-earning account be opened, held and controlled jointly by Margaret Kerubo Onchari and Rose Moruri Ariaga pending final distribution of the estate. Upon reconsideration of the impugned orders, this court is satisfied that the portion thereof directing Margaret Kerubo Onchari to participate in the operation and control of the estate account constituted an error apparent on the face of the record since authority to collect, preserve and manage estate property can only vest in the duly appointed administrators under the grant.
16. Whereas the court was properly concerned with preservation of rental income from the estate property pending hearing and determination of the succession cause, the implementation of such preservatory orders ought to have been vested strictly in the lawful administrators appointed under the grant. The court therefore finds that the Applicant has established sufficient basis for review under Order 45 Rule 1 of the Civil Procedure Rules on account of the error apparent on the face of the record aforesaid.
17. Consequently, the Notice of Motion dated 15th May 2026 is hereby allowed and the orders in the ruling delivered on 07th May 2026 are hereby reviewed and reissued as follows:
1) An estate joint deposit interest-earning account shall be opened, held and controlled jointly by Rose Moruri Ariaga and Nemwel Keoro Ariaga being the duly appointed administrators of the estate under the Grant of Letters of Administration Intestate issued on 09th February 2026 within sixty (60) days from the date hereof, the court being satisfied that adequate time ought to be granted for the opening and operationalisation of the account since the 2ndAdministrator is said to be residing in the United States of America.
2) Upon the opening and operationalisation of the estate joint deposit interest-earning account referred to in Order 1 above, all tenants occupying Sam’s Place (Plot Number A221 Noonkopir Trading Centre formerly 1083 Business, Kitengela) shall deposit their monthly rental obligations into the said account and shall cease making rental payments to Rose Moruri Ariaga, her agents, including Sopeo Kenya Enterprises Limited, or into Paybill Number 792733 or Account Number 01109286515600.
3) Upon the opening and operationalisation of the estate joint deposit interest-earning account referred to in Order 1 above, Rose Moruri Ariaga, the 1st Administrator herein, her agents, specifically including but not limited to Sopeo Kenya Enterprises Limited, her servants, assignees, or any person acting under her instructions, shall cease collecting rent or in any way alienating or intermeddling with the income arising from Sam’s Place (Plot Number A221 Noonkopir Trading Centre formerly 1083 Business, Kitengela).
4) In default of the opening and operationalisation of the estate joint deposit interest-earning account within sixty (60) days from the date hereof, all tenants occupying Sam’s Place (Plot Number A221 Noonkopir Trading Centre formerly 1083 Business, Kitengela) shall thereafter commence payment of monthly rent directly to the Registrar of the High Court of Kenya pending further orders of the court.
5) Rose Moruri Ariaga, the 1st Administrator herein, shall, at the hearing of distribution of the estate, render before this court a full, accurate and vouched account of all rental income collected from Sam’s Place (Plot Number A221 Noonkopir Trading Centre formerly 1083 Business, Kitengela) from 23rd November 2023 up to the time of ceasing collection of rent, together with supporting management and financial records in her possession or control relating thereto, including:
a) Monthly rent collection ledgers and statements;
b) Certified M-PESA statements for Paybill Number 792733;
c) Copies of tenancy agreements executed during the said period; and
d) Remittance receipts, bank transfer schedules or deposit slips showing funds transferred to Account Number 01109286515600 or to any other party.
6. Costs of the application shall be in the cause.
7. The court further notes that numerous interlocutory applications have been filed by the parties herein over time, thereby considerably delaying the progression of this succession cause toward confirmation of grant and final distribution of the estate.
8. In order to facilitate the orderly and expeditious disposal of this matter, each party shall within twenty-one (21) days from the date hereof file and serve a comprehensive status report setting out all applications filed by such party in this cause or in related proceedings touching on the estate of the deceased, indicating in respect of each application:
a) the date of the application
b) the nature of the orders sought;
c) whether the application has been served;
d) whether responses or submissions have been filed;
e) the current status of the application; and
f) whether the party still intends to prosecute or oppose the same.
9. Upon receipt of the said reports, the court shall issue further directions on the disposal, consolidation, withdrawal and/or compromise of all pending interlocutory applications with a view to advancing this succession cause toward confirmation of grant and final distribution of the estate without further unnecessary delay.
10. Parties are reminded that succession proceedings ought to facilitate the efficient administration and distribution of estates and should not be converted into endless interlocutory contests that are ultimately detrimental to the interests of the beneficiaries and the estate as a whole.
11. Mention on 30th July 2026 for confirmation of compliance with these Orders and for further directions.
2. The application is supported by the Supporting Affidavit sworn by ROSE MORURI ARIAGA on 15th May 2026 and the Supplementary Affidavit sworn on 21st May 2026.
3. The Applicant contends that the ruling delivered on 07th May 2026 contained an error apparent on the face of the record by directing that MARGARET KERUBO ONCHARI be involved in the operation and control of the joint account intended for preservation of rental proceeds from the estate property whereas she is not an administrator appointed under the Grant of Letters of Administration Intestate issued by this court on 09th February 2026. The Applicant further contends that the court failed to consider her Replying Affidavit dated 30th March 2026 prior to issuance of the impugned ruling.
4. The application is opposed through the Replying Affidavit sworn by Margaret Kerubo Onchari on 20th May 2026 in which she deponed that the application fails to meet the threshold for review under Order 45 of the Civil Procedure Rules and is merely intended to frustrate compliance with the preservatory orders issued by the court on 07th May 2026. She further deponed that as representative of the 1st household and a co-administrator, she was the proper person to jointly operate the escrow account alongside the Respondent/Applicant since the 2nd Petitioner resides and works in the United Kingdom and would not practically act as a day-to-day signatory to a local rent collection account.
5. The Petitioners/Respondents further contended that the Applicant had previously acknowledged through her advocates in a letter dated 21st February 2024 addressed to the Kajiado County Dispute Resolution Committee that Plot No. A221 Noonkopir formed part of the estate of the deceased and could only be dealt with through succession proceedings. They therefore accused the Applicant of approbating and reprobating by subsequently asserting exclusive ownership over the property.
6. The Respondents also deponed that the Applicant unlawfully diverted rental income from the suit property into her personal M-PESA Paybill and bank accounts without authority of the court or consent of the 1st household, thereby amounting to intermeddling contrary to Section 45 of the Law of Succession Act. They maintained that the preservatory orders issued on 07th May 2026 were necessary for preservation of the estate pending determination of the succession cause.
7. The Applicant filed written submissions dated 21st May 2026 through Linet Miencha & Co. Advocates. Counsel submitted that the impugned orders granted operational authority over estate assets to a person who was not an administrator appointed under the Grant of Letters of Administration Intestate issued by this court on 09th February 2026.
8. The Applicant relied on Paul Mwaniki v NHIF Board of Management [2020] eKLR and submitted that powers relating to management and administration can only vest in persons lawfully clothed with authority under the applicable legal framework and that such authority in succession proceedings flows strictly from the grant issued by the probate court. The Applicant further relied on Bhimji Karsan Ltd v National Bank of Kenya Ltd [2015] eKLR and argued that preservatory and status quo orders are intended to preserve the substratum of the dispute pending hearing and determination of the suit.
9. In the written submissions dated 20th May 2026 filed by by M3N Chambers LLP, counsel for the Respondents submitted that the application does not meet the threshold for review under Order 45 Rule 1 of the Civil Procedure Rules and was merely an attempt to re-litigate issues already determined by the court. Reliance was placed on Muyodi v Industrial & Commercial Development Corporation & Another [2006] 1 EA 243 and National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR. Counsel further submitted that questions relating to ownership of Plot No. A221 Noonkopir fall within the jurisdiction of the Environment and Land Court and cannot be conclusively determined through a review application in succession proceedings.
10. I have considered the application, affidavits, annextures, the ruling delivered on 07th May 2026 and the rival submissions filed by the parties.
11. The jurisdiction of this court to review its orders is donated by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
12. Under Order 45 Rule 1 of the Civil Procedure Rules, review may issue where there is discovery of new and important matter, mistake or error apparent on the face of the record or for any other sufficient reason.
13. The Applicant also complained that the court failed to consider her Replying Affidavit dated 30thMarch 2026 prior to delivery of the ruling of 07th May 2026. However, failure by a court to appreciate or properly evaluate evidence placed before it does not ordinarily constitute a ground for review but may properly found a basis for appeal.
14. Nevertheless, upon reconsideration of the material placed before this court, the Grant of Letters of Administration Intestate issued on 09th February 2026 shows that the administrators appointed by this court are Rose Moruri Ariaga and Nemwel Keoro Ariaga and that Margaret Kerubo Onchari was not appointed as an administrator of the estate.
15. In the ruling delivered on 07th May 2026, this court directed that the joint deposit interest-earning account be opened, held and controlled jointly by Margaret Kerubo Onchari and Rose Moruri Ariaga pending final distribution of the estate. Upon reconsideration of the impugned orders, this court is satisfied that the portion thereof directing Margaret Kerubo Onchari to participate in the operation and control of the estate account constituted an error apparent on the face of the record since authority to collect, preserve and manage estate property can only vest in the duly appointed administrators under the grant.
16. Whereas the court was properly concerned with preservation of rental income from the estate property pending hearing and determination of the succession cause, the implementation of such preservatory orders ought to have been vested strictly in the lawful administrators appointed under the grant. The court therefore finds that the Applicant has established sufficient basis for review under Order 45 Rule 1 of the Civil Procedure Rules on account of the error apparent on the face of the record aforesaid.
17. Consequently, the Notice of Motion dated 15th May 2026 is hereby allowed and the orders in the ruling delivered on 07th May 2026 are hereby reviewed and reissued as follows:
1) An estate joint deposit interest-earning account shall be opened, held and controlled jointly by Rose Moruri Ariaga and Nemwel Keoro Ariaga being the duly appointed administrators of the estate under the Grant of Letters of Administration Intestate issued on 09th February 2026 within sixty (60) days from the date hereof, the court being satisfied that adequate time ought to be granted for the opening and operationalisation of the account since the 2ndAdministrator is said to be residing in the United States of America.
2) Upon the opening and operationalisation of the estate joint deposit interest-earning account referred to in Order 1 above, all tenants occupying Sam’s Place (Plot Number A221 Noonkopir Trading Centre formerly 1083 Business, Kitengela) shall deposit their monthly rental obligations into the said account and shall cease making rental payments to Rose Moruri Ariaga, her agents, including Sopeo Kenya Enterprises Limited, or into Paybill Number 792733 or Account Number 01109286515600.
3) Upon the opening and operationalisation of the estate joint deposit interest-earning account referred to in Order 1 above, Rose Moruri Ariaga, the 1st Administrator herein, her agents, specifically including but not limited to Sopeo Kenya Enterprises Limited, her servants, assignees, or any person acting under her instructions, shall cease collecting rent or in any way alienating or intermeddling with the income arising from Sam’s Place (Plot Number A221 Noonkopir Trading Centre formerly 1083 Business, Kitengela).
4) In default of the opening and operationalisation of the estate joint deposit interest-earning account within sixty (60) days from the date hereof, all tenants occupying Sam’s Place (Plot Number A221 Noonkopir Trading Centre formerly 1083 Business, Kitengela) shall thereafter commence payment of monthly rent directly to the Registrar of the High Court of Kenya pending further orders of the court.
5) Rose Moruri Ariaga, the 1st Administrator herein, shall, at the hearing of distribution of the estate, render before this court a full, accurate and vouched account of all rental income collected from Sam’s Place (Plot Number A221 Noonkopir Trading Centre formerly 1083 Business, Kitengela) from 23rd November 2023 up to the time of ceasing collection of rent, together with supporting management and financial records in her possession or control relating thereto, including:
a) Monthly rent collection ledgers and statements;
b) Certified M-PESA statements for Paybill Number 792733;
c) Copies of tenancy agreements executed during the said period; and
d) Remittance receipts, bank transfer schedules or deposit slips showing funds transferred to Account Number 01109286515600 or to any other party.
6. Costs of the application shall be in the cause.
7. The court further notes that numerous interlocutory applications have been filed by the parties herein over time, thereby considerably delaying the progression of this succession cause toward confirmation of grant and final distribution of the estate.
8. In order to facilitate the orderly and expeditious disposal of this matter, each party shall within twenty-one (21) days from the date hereof file and serve a comprehensive status report setting out all applications filed by such party in this cause or in related proceedings touching on the estate of the deceased, indicating in respect of each application:
a) the date of the application
b) the nature of the orders sought;
c) whether the application has been served;
d) whether responses or submissions have been filed;
e) the current status of the application; and
f) whether the party still intends to prosecute or oppose the same.
9. Upon receipt of the said reports, the court shall issue further directions on the disposal, consolidation, withdrawal and/or compromise of all pending interlocutory applications with a view to advancing this succession cause toward confirmation of grant and final distribution of the estate without further unnecessary delay.
10. Parties are reminded that succession proceedings ought to facilitate the efficient administration and distribution of estates and should not be converted into endless interlocutory contests that are ultimately detrimental to the interests of the beneficiaries and the estate as a whole.
11. Mention on 30th July 2026 for confirmation of compliance with these Orders and for further directions.