Introduction
1. The application dated 2 nd March 2026 is supported by the affidavit of Teresia Wanjiru Ngari alias Wanjiru Ngari sworn on even date. The Applicant is seeking orders that:
a) Spent
b) The orders/ruling dated 25 th February, 2026 (declining to grant interim orders/stay of proceedings in Thika Succession Cause No. E101 of 2024) be reviewed, varied, set aside.
c) Pending the hearing and determination of the Appeal herein, there be stay of further proceedings in Thika Succession Cause No. E101 of 2024, including confirmation and distribution of the ( sic ) of the grant of letters of administration.
d) Costs of this Application be provided for.
2. In opposition to the application, the respondents filed grounds of opposition and replying affidavit both dated 15 th April 2026.
Appellant’s/Applicant’s Case
3. The applicant deposed that she lodged an appeal against the ruling delivered on 13 th November 2025 by the Thika Magistrate’s Court in Succession Cause No. E101 of 2024 which declined to stay confirmation of grant pending the determination of her claim that the deceased held land parcel LOC.1/MUKURWE/78 in trust for her in the parallel Kandara Environment and Land Court Case No. E026 of 2025. She further states that on 17 th February 2026, she filed an urgent application seeking stay of proceedings in Succession Cause No. E101 of 2024 particularly the confirmation scheduled for 18 th February 2026 to preserve the appeal and avoid prejudice to the ELC Case but the court found that the said application was overtaken by events and suggested filing a fresh application or lower court pursuit.
4. Following the order, the applicant persuaded the lower court to adjourn confirmation from 18 th February 2026 stating that there was an application for stay before the instant court whose directions they had not received and as a result, confirmation of the grant was adjourned to 25 th March 2026. On 24 th February 2026, she filed a fresh application seeking stay pending appeal but the court declined to grant interim orders on the basis that the application was premature and directed that the applicant to wait for the final orders of the court in order to appeal. Further that the land in question is situated in Muranga which is outside the administrative jurisdiction of the current court.
5. The applicant argues that there is an error apparent on the face of the record in the orders dated 25 th February 2026 as the application was not premature or overtaken, as the appeal herein is already pending before the court. Further, there is an error on the face of the record as this court has appellate jurisdiction over succession matters from the Thika Magistrates Court. She further argues that there is sufficient cause for the court to review or vary its orders so as to avert irreparable injustice as the scheduled confirmation of grant on 25 th March 2026 poses a real and imminent risk of distribution and transfer of LR. No. LOC.1/MUKURWE/78 and such distribution would result in irreversible alienation of the suit property thereby rendering the appeal nugatory and occasioning prejudice to the ongoing proceedings before the Environment and Land Court.
The Respondents’ Case
6. The respondents state the applicant has no locus standi to participate in the administration of the estate of the deceased as she is not a beneficiary of the estate. Further, the applicant has not taken any steps to prove her interest in the property known as Title Number LOC.1.MUKURWE.78. The respondents further argue that the applicant has not established a prima facie case in respect of ELC Case No. E026 of 2025 and she has not shown any basis upon which the court can stay the succession cause. Additionally, the applicant has had the matter pending for a long time and has delayed on proving her claim and her claim cannot be maintained any longer. The respondents assert that the property forms the estate of the deceased and the applicant has no interest in the same.
7. Parties put in written submissions.
The Applicant’s Submissions
8. The applicant cited Section 80 of the Civil Procedure Act , Order 45 Rule 1 of the Civil Procedure Rules and the cases of Republic vs Procurement Administrative Review Board & 2 Others [2019] eKLR and Muthini vs Muthini & another (Succession Cause 124 of 2010) [2025] KEHC 16809 (KLR) and submitted that the impugned orders are founded upon patent legal and factual errors which are self evident from the record which have caused her prejudice. The applicant argued that she filed an appeal against the ruling of the lower court delivered on 13 th November 2025 and the purpose of the application before the court was to seek preservatory relief pending the hearing and determination of an already existing appeal. The applicant further argued that such a misapprehension by the court goes to the core of the application and constitutes an error apparent on the face of the record.
9. On the issue of jurisdiction, the applicant argued that the appeal before this court arises from proceedings conducted before the magistrate’s court in Thika exercising jurisdiction under the law of Succession Act. The applicant further argued that pursuant to Article 165 of the Constitution and Section 47 of the Law of Succession Act, the current court exercises appellate and supervisory jurisdiction over subordinate courts hence the geographical location of the land does not divest this court of appellate jurisdiction over succession proceedings emanating from the subordinate court.
10. The applicant submitted that the succession court cannot distribute property whose ownership is actively contested before the Environment and Land Court. She has demonstrated that there exists a substantive and active dispute over ownership of LR. No. LOC.1/MUKURWE/78 which is presently before the Environment and Land Court at Kandara in ELC Case No. E026 of 2025. The Applicant thus argues that proceeding with confirmation and distribution of the disputed property before determination of the ELC Suit would amount to the succession court pre-empting and undermining the exclusive jurisdiction of the ELC court. Further that the consequences of such premature distribution would be severe once the property is distributed to the beneficiaries and potentially transferred to third parties because her claim may be rendered nugatory. To buttress this point, reliance was placed in the cases of Re Estate of Sika Ole Parkesui (Deceased) [2025] KEHC 17215 (KLR) and Omollo vs Ongoro (Succession Cause 366 of 2001) [2023] KEHC 18999.
11. The applicant further argued that she has demonstrated a prima facie and arguable case as she has shown that she has been in occupation of the suit property for decades, refunded to the deceased valuable consideration for the land and has already instituted proceedings before the ELC Court seeking declaration of trust and ownership rights. Additionally, the pending appeal raises serious and arguable questions regarding the refusal to grant preservatory orders.
12. The applicant submitted that she stands to suffer irreparable loss if the orders sought are denied as land is unique and once the suit property is distributed, subdivided or transferred, the resultant prejudice cannot be adequately compensated by an award of damages. She asserted that her occupation, possessory rights and claim based on trust would be extinguished irreversibly. Further, she argued that if the grant is confirmed prior to the determination of the pending ELC proceedings, the substratum of her claim would be fundamentally altered and she would be left without an effective remedy and the intended proceedings in the ELC Case would be rendered substantially undermined. Additionally, the applicant submitted that the balance of convenience tilts in favor of preserving the property. Granting stay merely maintains the existing status quo pending hearing and determination of the appeal and the ELC suit and the respondents will suffer no prejudice incapable of compensation, as the estate shall remain intact and under administration.
13. The applicant further argued that she has approached the court not as a beneficiary but as a third-party claimant asserting a proprietary interest over a specific asset wrongly included in the estate.
The Respondents’ Submissions
14. The respondents argued that the applicant is not a beneficiary, dependent or creditor of the deceased which she acknowledges in her pleadings. The applicant’s only nexus to the proceedings is a collateral claim of trust and occupation over one of the properties forming part of the estate which claim has not been established before any court of competent jurisdiction. The respondents cited the case of Re Estate of Stone Kathuli Muinde (Deceased) [2016] KEHC 3725 (KLR) and submitted that an applicant must have a sufficient legal interest in the subject matter of litigation before they can invoke the jurisdiction of a court.
15. The respondents submitted that the proper course for the applicant is to prosecute her ownership claim before the Environment and Land Court and if successful, to present the resulting decree to the succession court for implementation. The respondents relied on Halsbury’s Laws of England, 4 th Edition Vol 37 at page 330 ; Waweru vs Bor & Another [2024] KEHC 6325 (KLR) ; Mohammed Abdi vs P.S. Ministry of Interior and Coordination of National Government & Another [2018] KEHC 7054 (KLR) and Kenya Power & Lighting Company Limited vs Esther Wanjiru Wokabi [2014] KEHC 3174 (KLR) and submitted that the application fails to satisfy the criteria set out for stay of proceedings. They further argued that the allegations by the applicant that the orders of 25 th February 2026 have errors apparent on the face of the record is a mischaracterization. The learned Judge’s finding that the application was premature was entirely correct at the time as no final orders had been made in the succession proceedings that could properly ground a substantive appeal on the orders currently being sought. Further the finding on territorial jurisdiction did not occasion any miscarriage of justice that would render the appeal arguable in the requisite sense.
16. The respondents argued that the appeal before the court is against the ruling refusing to stay the confirmation proceedings at the subordinate court level. It does not concern itself with the ultimate disposition of the estate. Whilst relying on the case of Nguruman Limited vs Nielsen & 2 Others [2014] KECA 606 (KLR) , the respondents argued that an appeal is only rendered nugatory where the appellate court cannot grant effective relief which the applicant has not met. Further, the respondent argued that the assertion that the suit property will be irretrievably lost if confirmation proceeds is speculative. A confirmed grant does not operate as a transfer of title and the property remains part of the estate and subject to the court’s further directions.
17. On the balance of convenience, the respondents argued that the same favours the dismissal of the application. They further submitted that they have a legal duty and a constitutional obligation to administer the estate expeditiously and in accordance with the law as they were granted letters of administration upon satisfying the court of their entitlement to do so. They have further expended time, resources and effort in pursuing the estate administration in good faith. They argued that any further delay in the confirmation of the grant prejudices them and all the beneficiaries of the estate. The respondent further asserted that the applicant’s claimed interest in the suit property has not been established as she relies on an unproven and disputed allegation of trust. The suit in Kandara ELC Case No. E026 of 2025 is at a preliminary stage and there has been no finding even at the interlocutory level in the applicant’s favour. They argued that granting a stay based on a mere allegation, without more, would be tantamount to determining the ownership dispute in the applicant’s favour without affording them an opportunity to be heard.
18. The respondents argued that the stay sought is extraordinary broad as the applicant seeks to stay all further proceedings in the succession cause. That would effectively freeze the entire estate administration indefinitely given the uncertain timeline of the ELC proceedings. The Respondents argued that such a disproportionate remedy is not justified on the evidence before the court.
19. The respondents cited the case of Re Estate of the late M’Rwito Manga alias Chabari Manga (Deceased) [2024] KEHC 9679 (KLR) and submitted that the mere filing of the ELC suit does not warrant stay of succession proceedings. The respondents reiterated that the ELC Case No. E026 of 2025 has not progressed to a stage where any meaningful relief has been sought or granted. There is no finding in her favour. They further submitted that the application is an abuse of the court process as the applicant initially sought a stay before the subordinate succession court which was dismissed. She then brought the same application before the instant court on 17 th February 2026 and 24 th February 2026 both of which were declined. She now brings yet another application seeking substantially the same reliefs, dressed up as a combined application for review and stay pending appeal. The respondents argued that the present application does not introduce any new legal arguments or factual material of substance that was not or could not have been raised before.
20. On the allegations by the applicant that the succession court lacks jurisdiction to deal with the suit property by reason of the pending ELC proceedings is misconceived. The jurisdiction of the succession court is to identify the assets of the deceased, ascertain the beneficiaries and confirm the distribution of the estate. it does not exercise jurisdiction to determine questions of title or ownership which is the province of the Environment and Land Court. They further argued that the existence of a competing title claim does not automatically oust the succession court’s jurisdiction to administer the remainder of the estate.
Analysis and Determination
21. The main issues for determination are: -
a) Whether the Applicant has satisfied the legal threshold for the review of this Court orders/ruling dated 25 th February, 2026.
b) Whether the circumstances of this case justify a stay of further proceedings in Thika Succession Cause No. E101 of 2024 including confirmation of grant of letters of administration pending the hearing and determination of the instant Appeal.
Whether the Applicant has satisfied the legal threshold for the review of this Court orders/ruling dated 25 th February, 2026.
22. Review in succession proceedings is not expressly provided for either under the Law of Succession Act itself or in the Probate and Administration Rules made thereunder. Nevertheless Rule 63 of the Probate and Administration Rules allow for application of the Civil Procedure Rules which includes order 45 of the Civil Procedure Rules by stating thus:
63. Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules
(1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and 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 to proceedings under these Rules.
23. This position was reiterated by the Court in the case of Charles Kibe Karanja (deceased) [2015] eKLR where it held thus:
“... The remedy of review of Court orders is not directly provided for in the Law of Succession Act and the Probate and Administration Rules, but it is imported into probate practice by Rule 63 of Probate and Administration Rules, which has adopted a number of procedures from the Civil Procedure Rules...”
24. The threshold for review that this Court shall apply in determining the instant application is that which is stipulated under Order 45 of the Civil Procedure Code which provide as follows;
Rule 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 reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or order made or made the order without unreasonable delay.
25. It then follows that Order 45 provides for three circumstances under which an order for review can be made. The applicant must demonstrate to the court that there has been 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. Secondly, the applicant must demonstrate to the court that there has some mistake or error apparent on the face of the record. The third ground for review is worded broadly; an application for review can be made for any other sufficient reason.
26. The applicant based her application on error apparent on the face of the record. The Court of Appeal in the case of Muyodi vs Industrial and Commercial Development Corporation & Another (2006) 1 EA 243, considered what constitutes a mistake or error apparent on the face of the record, and stated as follows: -
In Nyamogo & Nyamogo vs Kogo (2001) EA 174 this Court said that an error on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is 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 long drawn process of reasoning or on points where there may be 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 or wrong view is certainly no ground for a review although it may be for an appeal.
27. Similarly in National Bank of Kenya Ltd vs Ndungu Njau Civil Appeal No. 211 of 1996 (UR) the Court of Appeal held:-
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. “
28. Additionally in Paul Mwaniki vs National Hospital Insurance Fund Board of Management [2020] eKLR the court stated:-
A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provisions of law cannot be a ground for review.
29. The court went on to say:-
The term ‘mistake or error apparent’ by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for purposes of Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Act. Put it differently an order, decision, or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. The wisdom flowing from jurisprudence on this subject is that no error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish it.
30. An error made on the face of the record must be self-evident and so obvious that it needs no argument to establish. If it would require reasoning on points where there may be conflicting opinions it would not constitute an error apparent on the face of the record.
31. The applicant argued that the error apparent on the face of the record is because the learned Judge (F. Muchemi, J) found on 25 th February 2026 that the application was premature and should await the final orders of the Court in CM’s Court, Thika Succession Cause No. E101 of 2024 and appeal, further that the land in question is situated in Murang’a which is outside the administrative/supervisory jurisdiction of this court.
32. The Judge exercised her discretion in declining to grant the stay by finding that the application was prematurely before her, and that, the issue could only be properly addressed after the lower court issues the final orders which then may be appealed instead of dealing with the matter at an interlocutory stage. The exercise of discretion in rejecting the application by the Judge on grounds of prematurity cannot constitute an error apparent on the face of the record just because the Applicant disagrees with the Judge’s discretionary findings. If the applicant considers the Judge erred and applied the wrong principles in exercising her discretion, the remedy is to appeal the decision made by the Judge.
33. In view of the foregoing reasons, this Court finds that the Applicant has not satisfied the requisite grounds for review. Having failed to surmount this primary threshold hurdle, it will be unnecessary for this Court to proceed to consider the secondary issue, namely; ‘Whether the circumstances of this case justify a stay of further proceedings in Thika Succession Cause No. E101 of 2024 including confirmation of grant of letters of administration.’
34. The upshot is the Application dated 2 nd march, 2026 is hereby dismissed with costs to the Respondent.
Dated, signed and delivered at Thika this 16th July, 2026.
..............................
L. N MUGAMBI
JUDGE
HC. FAMILY APPEAL NO. E023 OF 2025PAGE 8
1. The application dated 2 nd March 2026 is supported by the affidavit of Teresia Wanjiru Ngari alias Wanjiru Ngari sworn on even date. The Applicant is seeking orders that:
a) Spent
b) The orders/ruling dated 25 th February, 2026 (declining to grant interim orders/stay of proceedings in Thika Succession Cause No. E101 of 2024) be reviewed, varied, set aside.
c) Pending the hearing and determination of the Appeal herein, there be stay of further proceedings in Thika Succession Cause No. E101 of 2024, including confirmation and distribution of the ( sic ) of the grant of letters of administration.
d) Costs of this Application be provided for.
2. In opposition to the application, the respondents filed grounds of opposition and replying affidavit both dated 15 th April 2026.
Appellant’s/Applicant’s Case
3. The applicant deposed that she lodged an appeal against the ruling delivered on 13 th November 2025 by the Thika Magistrate’s Court in Succession Cause No. E101 of 2024 which declined to stay confirmation of grant pending the determination of her claim that the deceased held land parcel LOC.1/MUKURWE/78 in trust for her in the parallel Kandara Environment and Land Court Case No. E026 of 2025. She further states that on 17 th February 2026, she filed an urgent application seeking stay of proceedings in Succession Cause No. E101 of 2024 particularly the confirmation scheduled for 18 th February 2026 to preserve the appeal and avoid prejudice to the ELC Case but the court found that the said application was overtaken by events and suggested filing a fresh application or lower court pursuit.
4. Following the order, the applicant persuaded the lower court to adjourn confirmation from 18 th February 2026 stating that there was an application for stay before the instant court whose directions they had not received and as a result, confirmation of the grant was adjourned to 25 th March 2026. On 24 th February 2026, she filed a fresh application seeking stay pending appeal but the court declined to grant interim orders on the basis that the application was premature and directed that the applicant to wait for the final orders of the court in order to appeal. Further that the land in question is situated in Muranga which is outside the administrative jurisdiction of the current court.
5. The applicant argues that there is an error apparent on the face of the record in the orders dated 25 th February 2026 as the application was not premature or overtaken, as the appeal herein is already pending before the court. Further, there is an error on the face of the record as this court has appellate jurisdiction over succession matters from the Thika Magistrates Court. She further argues that there is sufficient cause for the court to review or vary its orders so as to avert irreparable injustice as the scheduled confirmation of grant on 25 th March 2026 poses a real and imminent risk of distribution and transfer of LR. No. LOC.1/MUKURWE/78 and such distribution would result in irreversible alienation of the suit property thereby rendering the appeal nugatory and occasioning prejudice to the ongoing proceedings before the Environment and Land Court.
The Respondents’ Case
6. The respondents state the applicant has no locus standi to participate in the administration of the estate of the deceased as she is not a beneficiary of the estate. Further, the applicant has not taken any steps to prove her interest in the property known as Title Number LOC.1.MUKURWE.78. The respondents further argue that the applicant has not established a prima facie case in respect of ELC Case No. E026 of 2025 and she has not shown any basis upon which the court can stay the succession cause. Additionally, the applicant has had the matter pending for a long time and has delayed on proving her claim and her claim cannot be maintained any longer. The respondents assert that the property forms the estate of the deceased and the applicant has no interest in the same.
7. Parties put in written submissions.
The Applicant’s Submissions
8. The applicant cited Section 80 of the Civil Procedure Act , Order 45 Rule 1 of the Civil Procedure Rules and the cases of Republic vs Procurement Administrative Review Board & 2 Others [2019] eKLR and Muthini vs Muthini & another (Succession Cause 124 of 2010) [2025] KEHC 16809 (KLR) and submitted that the impugned orders are founded upon patent legal and factual errors which are self evident from the record which have caused her prejudice. The applicant argued that she filed an appeal against the ruling of the lower court delivered on 13 th November 2025 and the purpose of the application before the court was to seek preservatory relief pending the hearing and determination of an already existing appeal. The applicant further argued that such a misapprehension by the court goes to the core of the application and constitutes an error apparent on the face of the record.
9. On the issue of jurisdiction, the applicant argued that the appeal before this court arises from proceedings conducted before the magistrate’s court in Thika exercising jurisdiction under the law of Succession Act. The applicant further argued that pursuant to Article 165 of the Constitution and Section 47 of the Law of Succession Act, the current court exercises appellate and supervisory jurisdiction over subordinate courts hence the geographical location of the land does not divest this court of appellate jurisdiction over succession proceedings emanating from the subordinate court.
10. The applicant submitted that the succession court cannot distribute property whose ownership is actively contested before the Environment and Land Court. She has demonstrated that there exists a substantive and active dispute over ownership of LR. No. LOC.1/MUKURWE/78 which is presently before the Environment and Land Court at Kandara in ELC Case No. E026 of 2025. The Applicant thus argues that proceeding with confirmation and distribution of the disputed property before determination of the ELC Suit would amount to the succession court pre-empting and undermining the exclusive jurisdiction of the ELC court. Further that the consequences of such premature distribution would be severe once the property is distributed to the beneficiaries and potentially transferred to third parties because her claim may be rendered nugatory. To buttress this point, reliance was placed in the cases of Re Estate of Sika Ole Parkesui (Deceased) [2025] KEHC 17215 (KLR) and Omollo vs Ongoro (Succession Cause 366 of 2001) [2023] KEHC 18999.
11. The applicant further argued that she has demonstrated a prima facie and arguable case as she has shown that she has been in occupation of the suit property for decades, refunded to the deceased valuable consideration for the land and has already instituted proceedings before the ELC Court seeking declaration of trust and ownership rights. Additionally, the pending appeal raises serious and arguable questions regarding the refusal to grant preservatory orders.
12. The applicant submitted that she stands to suffer irreparable loss if the orders sought are denied as land is unique and once the suit property is distributed, subdivided or transferred, the resultant prejudice cannot be adequately compensated by an award of damages. She asserted that her occupation, possessory rights and claim based on trust would be extinguished irreversibly. Further, she argued that if the grant is confirmed prior to the determination of the pending ELC proceedings, the substratum of her claim would be fundamentally altered and she would be left without an effective remedy and the intended proceedings in the ELC Case would be rendered substantially undermined. Additionally, the applicant submitted that the balance of convenience tilts in favor of preserving the property. Granting stay merely maintains the existing status quo pending hearing and determination of the appeal and the ELC suit and the respondents will suffer no prejudice incapable of compensation, as the estate shall remain intact and under administration.
13. The applicant further argued that she has approached the court not as a beneficiary but as a third-party claimant asserting a proprietary interest over a specific asset wrongly included in the estate.
The Respondents’ Submissions
14. The respondents argued that the applicant is not a beneficiary, dependent or creditor of the deceased which she acknowledges in her pleadings. The applicant’s only nexus to the proceedings is a collateral claim of trust and occupation over one of the properties forming part of the estate which claim has not been established before any court of competent jurisdiction. The respondents cited the case of Re Estate of Stone Kathuli Muinde (Deceased) [2016] KEHC 3725 (KLR) and submitted that an applicant must have a sufficient legal interest in the subject matter of litigation before they can invoke the jurisdiction of a court.
15. The respondents submitted that the proper course for the applicant is to prosecute her ownership claim before the Environment and Land Court and if successful, to present the resulting decree to the succession court for implementation. The respondents relied on Halsbury’s Laws of England, 4 th Edition Vol 37 at page 330 ; Waweru vs Bor & Another [2024] KEHC 6325 (KLR) ; Mohammed Abdi vs P.S. Ministry of Interior and Coordination of National Government & Another [2018] KEHC 7054 (KLR) and Kenya Power & Lighting Company Limited vs Esther Wanjiru Wokabi [2014] KEHC 3174 (KLR) and submitted that the application fails to satisfy the criteria set out for stay of proceedings. They further argued that the allegations by the applicant that the orders of 25 th February 2026 have errors apparent on the face of the record is a mischaracterization. The learned Judge’s finding that the application was premature was entirely correct at the time as no final orders had been made in the succession proceedings that could properly ground a substantive appeal on the orders currently being sought. Further the finding on territorial jurisdiction did not occasion any miscarriage of justice that would render the appeal arguable in the requisite sense.
16. The respondents argued that the appeal before the court is against the ruling refusing to stay the confirmation proceedings at the subordinate court level. It does not concern itself with the ultimate disposition of the estate. Whilst relying on the case of Nguruman Limited vs Nielsen & 2 Others [2014] KECA 606 (KLR) , the respondents argued that an appeal is only rendered nugatory where the appellate court cannot grant effective relief which the applicant has not met. Further, the respondent argued that the assertion that the suit property will be irretrievably lost if confirmation proceeds is speculative. A confirmed grant does not operate as a transfer of title and the property remains part of the estate and subject to the court’s further directions.
17. On the balance of convenience, the respondents argued that the same favours the dismissal of the application. They further submitted that they have a legal duty and a constitutional obligation to administer the estate expeditiously and in accordance with the law as they were granted letters of administration upon satisfying the court of their entitlement to do so. They have further expended time, resources and effort in pursuing the estate administration in good faith. They argued that any further delay in the confirmation of the grant prejudices them and all the beneficiaries of the estate. The respondent further asserted that the applicant’s claimed interest in the suit property has not been established as she relies on an unproven and disputed allegation of trust. The suit in Kandara ELC Case No. E026 of 2025 is at a preliminary stage and there has been no finding even at the interlocutory level in the applicant’s favour. They argued that granting a stay based on a mere allegation, without more, would be tantamount to determining the ownership dispute in the applicant’s favour without affording them an opportunity to be heard.
18. The respondents argued that the stay sought is extraordinary broad as the applicant seeks to stay all further proceedings in the succession cause. That would effectively freeze the entire estate administration indefinitely given the uncertain timeline of the ELC proceedings. The Respondents argued that such a disproportionate remedy is not justified on the evidence before the court.
19. The respondents cited the case of Re Estate of the late M’Rwito Manga alias Chabari Manga (Deceased) [2024] KEHC 9679 (KLR) and submitted that the mere filing of the ELC suit does not warrant stay of succession proceedings. The respondents reiterated that the ELC Case No. E026 of 2025 has not progressed to a stage where any meaningful relief has been sought or granted. There is no finding in her favour. They further submitted that the application is an abuse of the court process as the applicant initially sought a stay before the subordinate succession court which was dismissed. She then brought the same application before the instant court on 17 th February 2026 and 24 th February 2026 both of which were declined. She now brings yet another application seeking substantially the same reliefs, dressed up as a combined application for review and stay pending appeal. The respondents argued that the present application does not introduce any new legal arguments or factual material of substance that was not or could not have been raised before.
20. On the allegations by the applicant that the succession court lacks jurisdiction to deal with the suit property by reason of the pending ELC proceedings is misconceived. The jurisdiction of the succession court is to identify the assets of the deceased, ascertain the beneficiaries and confirm the distribution of the estate. it does not exercise jurisdiction to determine questions of title or ownership which is the province of the Environment and Land Court. They further argued that the existence of a competing title claim does not automatically oust the succession court’s jurisdiction to administer the remainder of the estate.
Analysis and Determination
21. The main issues for determination are: -
a) Whether the Applicant has satisfied the legal threshold for the review of this Court orders/ruling dated 25 th February, 2026.
b) Whether the circumstances of this case justify a stay of further proceedings in Thika Succession Cause No. E101 of 2024 including confirmation of grant of letters of administration pending the hearing and determination of the instant Appeal.
Whether the Applicant has satisfied the legal threshold for the review of this Court orders/ruling dated 25 th February, 2026.
22. Review in succession proceedings is not expressly provided for either under the Law of Succession Act itself or in the Probate and Administration Rules made thereunder. Nevertheless Rule 63 of the Probate and Administration Rules allow for application of the Civil Procedure Rules which includes order 45 of the Civil Procedure Rules by stating thus:
63. Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules
(1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and 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 to proceedings under these Rules.
23. This position was reiterated by the Court in the case of Charles Kibe Karanja (deceased) [2015] eKLR where it held thus:
“... The remedy of review of Court orders is not directly provided for in the Law of Succession Act and the Probate and Administration Rules, but it is imported into probate practice by Rule 63 of Probate and Administration Rules, which has adopted a number of procedures from the Civil Procedure Rules...”
24. The threshold for review that this Court shall apply in determining the instant application is that which is stipulated under Order 45 of the Civil Procedure Code which provide as follows;
Rule 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 reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or order made or made the order without unreasonable delay.
25. It then follows that Order 45 provides for three circumstances under which an order for review can be made. The applicant must demonstrate to the court that there has been 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. Secondly, the applicant must demonstrate to the court that there has some mistake or error apparent on the face of the record. The third ground for review is worded broadly; an application for review can be made for any other sufficient reason.
26. The applicant based her application on error apparent on the face of the record. The Court of Appeal in the case of Muyodi vs Industrial and Commercial Development Corporation & Another (2006) 1 EA 243, considered what constitutes a mistake or error apparent on the face of the record, and stated as follows: -
In Nyamogo & Nyamogo vs Kogo (2001) EA 174 this Court said that an error on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is 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 long drawn process of reasoning or on points where there may be 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 or wrong view is certainly no ground for a review although it may be for an appeal.
27. Similarly in National Bank of Kenya Ltd vs Ndungu Njau Civil Appeal No. 211 of 1996 (UR) the Court of Appeal held:-
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. “
28. Additionally in Paul Mwaniki vs National Hospital Insurance Fund Board of Management [2020] eKLR the court stated:-
A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provisions of law cannot be a ground for review.
29. The court went on to say:-
The term ‘mistake or error apparent’ by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for purposes of Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Act. Put it differently an order, decision, or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. The wisdom flowing from jurisprudence on this subject is that no error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish it.
30. An error made on the face of the record must be self-evident and so obvious that it needs no argument to establish. If it would require reasoning on points where there may be conflicting opinions it would not constitute an error apparent on the face of the record.
31. The applicant argued that the error apparent on the face of the record is because the learned Judge (F. Muchemi, J) found on 25 th February 2026 that the application was premature and should await the final orders of the Court in CM’s Court, Thika Succession Cause No. E101 of 2024 and appeal, further that the land in question is situated in Murang’a which is outside the administrative/supervisory jurisdiction of this court.
32. The Judge exercised her discretion in declining to grant the stay by finding that the application was prematurely before her, and that, the issue could only be properly addressed after the lower court issues the final orders which then may be appealed instead of dealing with the matter at an interlocutory stage. The exercise of discretion in rejecting the application by the Judge on grounds of prematurity cannot constitute an error apparent on the face of the record just because the Applicant disagrees with the Judge’s discretionary findings. If the applicant considers the Judge erred and applied the wrong principles in exercising her discretion, the remedy is to appeal the decision made by the Judge.
33. In view of the foregoing reasons, this Court finds that the Applicant has not satisfied the requisite grounds for review. Having failed to surmount this primary threshold hurdle, it will be unnecessary for this Court to proceed to consider the secondary issue, namely; ‘Whether the circumstances of this case justify a stay of further proceedings in Thika Succession Cause No. E101 of 2024 including confirmation of grant of letters of administration.’
34. The upshot is the Application dated 2 nd march, 2026 is hereby dismissed with costs to the Respondent.
Dated, signed and delivered at Thika this 16th July, 2026.
..............................
L. N MUGAMBI
JUDGE
HC. FAMILY APPEAL NO. E023 OF 2025PAGE 8