The Application.
1. The 2 nd respondent/applicant Jane Ngina Mwangi filed a Notice of Motion dated 13 th April, 2026 under Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act seeking for stay of orders issued on 11 th March, 2026 revoking the grant herein and the appointment of new administrators. The 2 nd respondent/applicant also sought among other orders review, variation and/or setting aside the ruling and orders delivered on 11 th March, 2026.
2. The application is based on the grounds on the face of it and the supporting affidavit of the 2 nd respondent/applicant sworn on 13 th April, 2026. Basically the 2 nd respondent/applicant contend that there is an error apparent on the face of the record in the sense that the court failed to consider material evidence placed before it. The 2 nd respondent/applicant points out that the court did not consider the affidavit filed by the 1 st respondent, failure to consider that the consent the basis of revocation of the grant was not signed by the beneficiaries but by the advocates for the parties, that the purported consent excluded some beneficiaries including the 2 nd respondent/applicant and that the court did not give the then administrators meaningful opportunity to explain the circumstances leading to partial non-compliance neither did the court consider the affidavit filed detailing efforts made to comply with the court orders. All these contentions are expounded in the affidavit in support.
The preliminary Objection.
3. The 1 st beneficiary Daniel Gicho Mwangi raised a preliminary objection to the application by the 2 nd respondent/applicant contending that the court is divested of jurisdiction to hear and determine the application dated 13 th April, 2026 by dint of Section 80 of the Civil Procedure Act and Order 45 Rule (1) and (2) of the Civil Procedure Rules. The 1 st beneficiary urged the court to uphold the preliminary objection and dismiss the application with costs.
4. The 2 nd beneficiary Nelphat Ngatha Mwangi supported the preliminary objection by the 1 st beneficiary in his submissions.
Submissions by the 1 st and 2 nd Beneficiaries.
5. The 1 st beneficiary filed written submissions dated 12 th May, 2026 whereas the 2 nd beneficiary filed submissions dated 27 th April, 2026. I have carefully read through the said submissions.
6. The gist of the 1 st and 2 nd beneficiaries submissions is that an appeal has been preferred against the ruling and orders delivered on 11 th March, 2026 where the 2 nd respondent/applicant is named as the 2 nd applicant in the said appeal which appeal is active and subsisting hence the 2 nd respondent/applicant has not satisfied the preconditions set out in Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules which excludes the jurisdiction of this court to review orders or decree under the aforesaid provisions where there is an appeal.
7. It is further the contention of the 1 st and 2 nd beneficiaries that it does not matter whether the 2 nd respondent/applicant has not filed an appeal or has withdrawn her appeal as the provisions of Section 80 of the Civil Procedure Act disqualifies review where any appeal has been preferred against the same decree or order. This position of the 1 st and 2 nd beneficiaries is anchored on the fact that 2 nd respondent/applicant and the appellant were co-administrators hence they cannot pursue parallel and inconsistent remedies in respect of the same indivisible order.
8. The 1 st and 2 nd beneficiaries argue that the order of 11 th March, 2026 revoked a joint grant issued to the 1 st respondent and 2 nd respondent/applicant which is not severable and the 1 st respondent having appealed against the said order revoking the said grant, the 2 nd respondent/applicant is in substance and form a co-appellant. As such she cannot seek to set aside the same orders by a separate review application while her co-administrator challenges the same orders on appeal. It is the contention of the 1 st and 2 nd beneficiaries that such course would fragment a single remedy into parallel proceedings, risk conflicting determinations by two different courts and constitute an abuse of the process of the court.
9. The 1 st and 2 nd beneficiaries relied on several decisions among them the case of re Estate of Makokha Idris Khasabuli (deceased) (2019) KEHC 257 (KLR) where the court held that where parties occupy a representative capacity in respect of a single estate, they must proceed in a unified manner and cannot pursue inconsistent or parallel remedies that may result in contradictory outcomes affecting the estate.
10. Further the 1 st and 2 nd beneficiaries relied on the case of Multichoice (Kenya) Ltd vs Wananchi Group (Kenya) Ltd & 2 others (2020) KECA 633 (KLR) where the Court of Appeal emphasized that the legal policy of Order 45 is to prevent a party from pursuing two remedies at one and the same time, that is to apply for review in the court below while his appeal is pending in the appellate court a scenario not contemplated under both the Civil Procedure Rules and the Court of Appeal Rules.
The 2 nd Respondent/Applicant’s Submissions.
11. The 2 nd respondent/applicant cited the provisions of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules and submitted that no appeal has been preferred as argued by the 1 st and 2 nd beneficiaries as what the 1 st respondent has filed is a Notice of Appeal and there is no memorandum or record of appeal has been filed before the Court of Appeal. Reliance is placed on the case of Multichoice (Kenya) Limited vs Wananchi Group (Kenya) Limited & 2 Others (2020) KECA 633 (KLR) where the Court of Appeal deemed Notice of Appeal as not appeal for the purposes of Order 45 of the Civil Procedure Rules.
12. It is further argued that the 2 nd respondent/applicant although she had filed a Notice of Appeal she withdrew the same and decided to pursue review hence the contention by the two beneficiaries that the grounds raised in the intended appeal and the application for review are the common cannot arise.
13. Further the 2 nd respondent/applicant argue that under Order 45 of the Civil Procedure Rules, it is clear that the right to seek review is preserved for non-appealing party and is not defeated by existence of an appeal initiated by another party. Reliance is placed in the case of Philip Ochilo Orero vs Seko (1984) KECA 50 (KLR) where it was held that the right under Section 80 of the Civil Procedure Act is reserved to a party who has a right to appeal but has not preferred any appeal.
14. It is the contention of the 2 nd respondent/applicant that she has not preferred any appeal. Only the 1 st respondent has filed Notice of Appeal who is an independent party. Consequently, the 2 nd respondent/Applicant is at liberty to pursue her remedies independently from the 2 nd respondent. In other words, the 2 nd respondent/applicant argue that the fact that the 1 st respondent has made intention to appeal cannot extinguish or limit her independent right to seek review under Order 45 of the Civil Procedure Rules.
15. For the foregoing, the 2 nd respondent/applicant urge the court to find that she ahs not preferred an appeal, that the Notice of Appeal filed by the 1 st respondent together with application for stay of execution before the Court of Appeal do not divest the court the jurisdiction to entertain and determine the application for review before this court, that the 2 nd respondent/applicant being a non-appealing party retains the right to seek review notwithstanding any steps that the 1 st respondent has taken in pursuit of his appeal. The 2 nd respondent/applicant has urged the court to overrule the preliminary objection.
Analysis and Determination.
16. I have considered the submissions by both parties in respect of the preliminary objection raised. The starting point is to determine whether the objection raised by the 1 st and 2 nd beneficiaries meets the threshold of what constitutes a preliminary objection. In the famous case of Mukisa Biscuits Manufacturers Ltd vs West End Distributors Ltd (1969) E.A 696 the court defined preliminary objection as follows:
“…as far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by contract giving rise to the suit to refer the dispute to arbitration.”
17. In the case of Dismas Wambola vs Cabinet Secretary, Treasurer & 5 others (2017) e KLR it was stated as follows:
“A preliminary objection must first, raise a point of law based on ascertained facts and not evidence. Secondly, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merit or facts of the case, but must be on pure points of law. It may be noted that preliminary objections are narrow in scope and cannot raise substantive issues raised in the pleadings that may have to be determined by the court after perusal of evidence…”
18. In the instant case the basis of the objection by the 1 st and 2 nd beneficiaries is that the 2 nd respondent/applicant is seeking review of the orders issued on 11 th March, 2026 whereas there is an appeal preferred against the said orders in the Court of Appeal. As such, the court has no jurisdiction to entertain the application by the 2 nd respondent/applicant seeking review of the said orders pursuant to the provisions of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
19. Section 80 of the Civil Procedure Act provides:
“Any person who considers himself aggrieved-
a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b) by a decree or order from which no appeal is allowed by this Act. may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
20. Order 45 of the Civil Procedure Rules on the other hand provides:
45. 1(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 reasons, desires to obtain a review of the decree or order may apply for a review of judgment to the court which pass the decree or made the order without unreasonable delay”
(2) A party who is not appealing from a decree or order may apply for review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.”
21. From the foregoing it is clear that where a party is aggrieved by a decree or an order may apply to the court which passed the decree or order for review of the same, although appeal is allowed. The only bar is that a party cannot pursue an appeal and at the same time seek review. In such case, the court will not have jurisdiction to review the decree or order if the party has appealed.
22. In the instant case, the 1 st and 2 nd beneficiaries argue that the 2 nd respondent/applicant and 1 st respondent have preferred an appeal to the Court of Appeal. The 2 nd respondent/applicant contend that she has not preferred an appeal as alleged as she withdrew her Notice of Appeal. It is her contention that it is the 1 st respondent who has preferred an appeal and in any case what the 1 st respondent has filed is Notice of Appeal which is an intention to appeal but not an appeal in itself.
23. I have considered the foregoing position taken by the rival parties herein. It is not in dispute that the 1 st respondent has filed Notice of Appeal and an application for stay before the Court of Appeal. It is also not in dispute that the 2 nd respondent/applicant has not filed an appeal hence she may be entitled to seek review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules despite pendency of the appeal preferred by the 1 st respondent.
24. Let me start off by stating that it has been settled by the Court of Appeal in the case of Multichoice (Kenya) Ltd vs Wananchi Group (Kenya) Ltd (supra) that a Notice of Appeal is not in itself an appeal but an intention to appeal and filing of the same is not a bar to seeking review under Order 45 of the Civil Procedure Rules.
25. In this case the 2 nd respondent has filed Notice of Appeal and an application for stay of execution of the orders sought to be reviewed by the 2 nd respondent/applicant. The indication is so clear that the 1 st respondent is determined to pursue the appeal as demonstrated by an application seeking stay filed in the court of appeal. The question therefore is the intention and determination of the 1 st respondent pursuit of the appeal a bar to the 2 nd respondent/applicant pursuing review of the orders appealed against by the 1 st respondent/applicant.
26. In answering that question, it is crucial to look at the nature of the orders the 1 st respondent is appealing against and 2 nd respondent/applicant is seeking to review. It is clear from the orders issued on 11 th March, 2026 that the 1 st and 2 nd respondent were joint administrators in respect of the estate of the deceased. The orders sought to be reviewed were to the effect that the 1 st respondent and 2 nd respondent/applicant were ordered to render accounts within a particular period failure of which the grant will be revoked and new administrators be appointed. They failed to comply leading to the revocation of the grant and the appointment of new administrators.
27. From the above it is clear that the 1 st respondent and 2 nd respondent/applicant were joint administrators before the grant was revoked and new administrators appointed. It is therefore clear that they are pursuing the same interests. As provided for under Order 45 Rule (2) of the Civil Procedure Rules, there are exception when a party not appealing cannot be allowed to pursue review when some of the other parties have appealed. Those exceptions are when the ground of such appeal is common to the ground of the application for review, or when the applicant for review is a respondent in the appeal. In such case, the applicant for review is best suited to pursue his grievances in the appeal.
28. As stated in the case of re Estate of Makokha Idris Khasabuli (Deceased) (supra) in circumstances as obtaining in this case, it is prudent that the parties proceed in a unified manner. The reasoning behind this is to avoid fragmentation of a single remedy into parallel proceedings and to avoid conflicting decisions by two different courts.
29. In the instant case, I find the preliminary objection by the 1 st and 2 nd beneficiaries merited in the sense that in the circumstances of this case and going by the fact that the 1 st respondent and 2 nd respondent/applicant were joint administrators before revocation of the grant, it will be prudent that they proceed in a unified manner. As such and the 1 st respondent having filed an appeal which he has shown intention of pursuing by filing stay of execution of the orders sought to be reviewed herein in the Court of Appeal, it will be prudent that she pursues her grievances in the Court of Appeal to avoid conflicting decisions of this court and the Court of Appeal.
30. The upshot of the foregoing is that the preliminary objection is merited and the same is upheld and the application dated 13 th April, 2026 is dismissed with costs.
Dated, signed and delivered virtually this 21 st day of September, 2026.
F.N Kyambia
Judge
2
1. The 2 nd respondent/applicant Jane Ngina Mwangi filed a Notice of Motion dated 13 th April, 2026 under Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act seeking for stay of orders issued on 11 th March, 2026 revoking the grant herein and the appointment of new administrators. The 2 nd respondent/applicant also sought among other orders review, variation and/or setting aside the ruling and orders delivered on 11 th March, 2026.
2. The application is based on the grounds on the face of it and the supporting affidavit of the 2 nd respondent/applicant sworn on 13 th April, 2026. Basically the 2 nd respondent/applicant contend that there is an error apparent on the face of the record in the sense that the court failed to consider material evidence placed before it. The 2 nd respondent/applicant points out that the court did not consider the affidavit filed by the 1 st respondent, failure to consider that the consent the basis of revocation of the grant was not signed by the beneficiaries but by the advocates for the parties, that the purported consent excluded some beneficiaries including the 2 nd respondent/applicant and that the court did not give the then administrators meaningful opportunity to explain the circumstances leading to partial non-compliance neither did the court consider the affidavit filed detailing efforts made to comply with the court orders. All these contentions are expounded in the affidavit in support.
The preliminary Objection.
3. The 1 st beneficiary Daniel Gicho Mwangi raised a preliminary objection to the application by the 2 nd respondent/applicant contending that the court is divested of jurisdiction to hear and determine the application dated 13 th April, 2026 by dint of Section 80 of the Civil Procedure Act and Order 45 Rule (1) and (2) of the Civil Procedure Rules. The 1 st beneficiary urged the court to uphold the preliminary objection and dismiss the application with costs.
4. The 2 nd beneficiary Nelphat Ngatha Mwangi supported the preliminary objection by the 1 st beneficiary in his submissions.
Submissions by the 1 st and 2 nd Beneficiaries.
5. The 1 st beneficiary filed written submissions dated 12 th May, 2026 whereas the 2 nd beneficiary filed submissions dated 27 th April, 2026. I have carefully read through the said submissions.
6. The gist of the 1 st and 2 nd beneficiaries submissions is that an appeal has been preferred against the ruling and orders delivered on 11 th March, 2026 where the 2 nd respondent/applicant is named as the 2 nd applicant in the said appeal which appeal is active and subsisting hence the 2 nd respondent/applicant has not satisfied the preconditions set out in Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules which excludes the jurisdiction of this court to review orders or decree under the aforesaid provisions where there is an appeal.
7. It is further the contention of the 1 st and 2 nd beneficiaries that it does not matter whether the 2 nd respondent/applicant has not filed an appeal or has withdrawn her appeal as the provisions of Section 80 of the Civil Procedure Act disqualifies review where any appeal has been preferred against the same decree or order. This position of the 1 st and 2 nd beneficiaries is anchored on the fact that 2 nd respondent/applicant and the appellant were co-administrators hence they cannot pursue parallel and inconsistent remedies in respect of the same indivisible order.
8. The 1 st and 2 nd beneficiaries argue that the order of 11 th March, 2026 revoked a joint grant issued to the 1 st respondent and 2 nd respondent/applicant which is not severable and the 1 st respondent having appealed against the said order revoking the said grant, the 2 nd respondent/applicant is in substance and form a co-appellant. As such she cannot seek to set aside the same orders by a separate review application while her co-administrator challenges the same orders on appeal. It is the contention of the 1 st and 2 nd beneficiaries that such course would fragment a single remedy into parallel proceedings, risk conflicting determinations by two different courts and constitute an abuse of the process of the court.
9. The 1 st and 2 nd beneficiaries relied on several decisions among them the case of re Estate of Makokha Idris Khasabuli (deceased) (2019) KEHC 257 (KLR) where the court held that where parties occupy a representative capacity in respect of a single estate, they must proceed in a unified manner and cannot pursue inconsistent or parallel remedies that may result in contradictory outcomes affecting the estate.
10. Further the 1 st and 2 nd beneficiaries relied on the case of Multichoice (Kenya) Ltd vs Wananchi Group (Kenya) Ltd & 2 others (2020) KECA 633 (KLR) where the Court of Appeal emphasized that the legal policy of Order 45 is to prevent a party from pursuing two remedies at one and the same time, that is to apply for review in the court below while his appeal is pending in the appellate court a scenario not contemplated under both the Civil Procedure Rules and the Court of Appeal Rules.
The 2 nd Respondent/Applicant’s Submissions.
11. The 2 nd respondent/applicant cited the provisions of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules and submitted that no appeal has been preferred as argued by the 1 st and 2 nd beneficiaries as what the 1 st respondent has filed is a Notice of Appeal and there is no memorandum or record of appeal has been filed before the Court of Appeal. Reliance is placed on the case of Multichoice (Kenya) Limited vs Wananchi Group (Kenya) Limited & 2 Others (2020) KECA 633 (KLR) where the Court of Appeal deemed Notice of Appeal as not appeal for the purposes of Order 45 of the Civil Procedure Rules.
12. It is further argued that the 2 nd respondent/applicant although she had filed a Notice of Appeal she withdrew the same and decided to pursue review hence the contention by the two beneficiaries that the grounds raised in the intended appeal and the application for review are the common cannot arise.
13. Further the 2 nd respondent/applicant argue that under Order 45 of the Civil Procedure Rules, it is clear that the right to seek review is preserved for non-appealing party and is not defeated by existence of an appeal initiated by another party. Reliance is placed in the case of Philip Ochilo Orero vs Seko (1984) KECA 50 (KLR) where it was held that the right under Section 80 of the Civil Procedure Act is reserved to a party who has a right to appeal but has not preferred any appeal.
14. It is the contention of the 2 nd respondent/applicant that she has not preferred any appeal. Only the 1 st respondent has filed Notice of Appeal who is an independent party. Consequently, the 2 nd respondent/Applicant is at liberty to pursue her remedies independently from the 2 nd respondent. In other words, the 2 nd respondent/applicant argue that the fact that the 1 st respondent has made intention to appeal cannot extinguish or limit her independent right to seek review under Order 45 of the Civil Procedure Rules.
15. For the foregoing, the 2 nd respondent/applicant urge the court to find that she ahs not preferred an appeal, that the Notice of Appeal filed by the 1 st respondent together with application for stay of execution before the Court of Appeal do not divest the court the jurisdiction to entertain and determine the application for review before this court, that the 2 nd respondent/applicant being a non-appealing party retains the right to seek review notwithstanding any steps that the 1 st respondent has taken in pursuit of his appeal. The 2 nd respondent/applicant has urged the court to overrule the preliminary objection.
Analysis and Determination.
16. I have considered the submissions by both parties in respect of the preliminary objection raised. The starting point is to determine whether the objection raised by the 1 st and 2 nd beneficiaries meets the threshold of what constitutes a preliminary objection. In the famous case of Mukisa Biscuits Manufacturers Ltd vs West End Distributors Ltd (1969) E.A 696 the court defined preliminary objection as follows:
“…as far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by contract giving rise to the suit to refer the dispute to arbitration.”
17. In the case of Dismas Wambola vs Cabinet Secretary, Treasurer & 5 others (2017) e KLR it was stated as follows:
“A preliminary objection must first, raise a point of law based on ascertained facts and not evidence. Secondly, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merit or facts of the case, but must be on pure points of law. It may be noted that preliminary objections are narrow in scope and cannot raise substantive issues raised in the pleadings that may have to be determined by the court after perusal of evidence…”
18. In the instant case the basis of the objection by the 1 st and 2 nd beneficiaries is that the 2 nd respondent/applicant is seeking review of the orders issued on 11 th March, 2026 whereas there is an appeal preferred against the said orders in the Court of Appeal. As such, the court has no jurisdiction to entertain the application by the 2 nd respondent/applicant seeking review of the said orders pursuant to the provisions of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
19. Section 80 of the Civil Procedure Act provides:
“Any person who considers himself aggrieved-
a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b) by a decree or order from which no appeal is allowed by this Act. may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
20. Order 45 of the Civil Procedure Rules on the other hand provides:
45. 1(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 reasons, desires to obtain a review of the decree or order may apply for a review of judgment to the court which pass the decree or made the order without unreasonable delay”
(2) A party who is not appealing from a decree or order may apply for review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.”
21. From the foregoing it is clear that where a party is aggrieved by a decree or an order may apply to the court which passed the decree or order for review of the same, although appeal is allowed. The only bar is that a party cannot pursue an appeal and at the same time seek review. In such case, the court will not have jurisdiction to review the decree or order if the party has appealed.
22. In the instant case, the 1 st and 2 nd beneficiaries argue that the 2 nd respondent/applicant and 1 st respondent have preferred an appeal to the Court of Appeal. The 2 nd respondent/applicant contend that she has not preferred an appeal as alleged as she withdrew her Notice of Appeal. It is her contention that it is the 1 st respondent who has preferred an appeal and in any case what the 1 st respondent has filed is Notice of Appeal which is an intention to appeal but not an appeal in itself.
23. I have considered the foregoing position taken by the rival parties herein. It is not in dispute that the 1 st respondent has filed Notice of Appeal and an application for stay before the Court of Appeal. It is also not in dispute that the 2 nd respondent/applicant has not filed an appeal hence she may be entitled to seek review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules despite pendency of the appeal preferred by the 1 st respondent.
24. Let me start off by stating that it has been settled by the Court of Appeal in the case of Multichoice (Kenya) Ltd vs Wananchi Group (Kenya) Ltd (supra) that a Notice of Appeal is not in itself an appeal but an intention to appeal and filing of the same is not a bar to seeking review under Order 45 of the Civil Procedure Rules.
25. In this case the 2 nd respondent has filed Notice of Appeal and an application for stay of execution of the orders sought to be reviewed by the 2 nd respondent/applicant. The indication is so clear that the 1 st respondent is determined to pursue the appeal as demonstrated by an application seeking stay filed in the court of appeal. The question therefore is the intention and determination of the 1 st respondent pursuit of the appeal a bar to the 2 nd respondent/applicant pursuing review of the orders appealed against by the 1 st respondent/applicant.
26. In answering that question, it is crucial to look at the nature of the orders the 1 st respondent is appealing against and 2 nd respondent/applicant is seeking to review. It is clear from the orders issued on 11 th March, 2026 that the 1 st and 2 nd respondent were joint administrators in respect of the estate of the deceased. The orders sought to be reviewed were to the effect that the 1 st respondent and 2 nd respondent/applicant were ordered to render accounts within a particular period failure of which the grant will be revoked and new administrators be appointed. They failed to comply leading to the revocation of the grant and the appointment of new administrators.
27. From the above it is clear that the 1 st respondent and 2 nd respondent/applicant were joint administrators before the grant was revoked and new administrators appointed. It is therefore clear that they are pursuing the same interests. As provided for under Order 45 Rule (2) of the Civil Procedure Rules, there are exception when a party not appealing cannot be allowed to pursue review when some of the other parties have appealed. Those exceptions are when the ground of such appeal is common to the ground of the application for review, or when the applicant for review is a respondent in the appeal. In such case, the applicant for review is best suited to pursue his grievances in the appeal.
28. As stated in the case of re Estate of Makokha Idris Khasabuli (Deceased) (supra) in circumstances as obtaining in this case, it is prudent that the parties proceed in a unified manner. The reasoning behind this is to avoid fragmentation of a single remedy into parallel proceedings and to avoid conflicting decisions by two different courts.
29. In the instant case, I find the preliminary objection by the 1 st and 2 nd beneficiaries merited in the sense that in the circumstances of this case and going by the fact that the 1 st respondent and 2 nd respondent/applicant were joint administrators before revocation of the grant, it will be prudent that they proceed in a unified manner. As such and the 1 st respondent having filed an appeal which he has shown intention of pursuing by filing stay of execution of the orders sought to be reviewed herein in the Court of Appeal, it will be prudent that she pursues her grievances in the Court of Appeal to avoid conflicting decisions of this court and the Court of Appeal.
30. The upshot of the foregoing is that the preliminary objection is merited and the same is upheld and the application dated 13 th April, 2026 is dismissed with costs.
Dated, signed and delivered virtually this 21 st day of September, 2026.
F.N Kyambia
Judge
2