https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11756

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **SUCCESSION CAUSE NO. 34 OF 2007** **IN THE MATTER OF THE ESTATE OF JAMES SAMUEL KIHUGA CHEGE** **(DECEASED)** **AND** **SUCCESSION CAUSE NO.85 OF 2007** **IN THE MATTER OF THE ESTATE OF TABITHA WAITHERA KAMAU** **(DECEASED)** **RULING** **Introduction** 1. Before this Court is the Summons for Review dated **9th March 2026** brought by the Applicant under Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules and the relevant provisions of the Law of Succession Act. The application seeks the review of this Court's ruling delivered on **27th February 2026**, principally on the ground that the Court inadvertently distributed the entirety of **Eldoret Municipality Block 9/17 (Border Farm)/79**, whereas, according to the Applicant, only the deceased's undivided half share formed part of the estate available for distribution. Consequential orders are also sought for the redistribution of **L.R. No. 772/7 I.R. No. 8266** so as to preserve the parity adopted in the impugned distribution. 2. The application is opposed. The Respondents maintain that the property in question was held under a joint tenancy and that, upon the death of the co-proprietor, the doctrine of survivorship operated by force of law to vest the entire interest in the deceased. They consequently contend that no error apparent on the face of the record has been demonstrated and that the application merely invites this Court to reconsider the legal correctness of its earlier decision, a remedy available only on appeal. 3. The Court has carefully considered the application, the affidavits filed by the parties, the rival positions advanced, the applicable statutory framework and the relevant jurisprudence. In my respectful view, the application presents a single overarching question: **whether the complaint raised discloses a proper ground for the exercise of this Court's limited review jurisdiction.** **The Application** 1. The Applicant seeks the review and variation of the ruling delivered on **27th February 2026** on the basis that the Court fell into error by treating **Eldoret Municipality Block 9/17 (Border Farm)/79** as wholly forming part of the deceased's estate notwithstanding that the register reflected joint proprietorship between the deceased and **Muchiku Kihuga**. It is contended that only the deceased's undivided one-half interest was available for distribution under the Law of Succession Act and that the resultant distribution of the estate therefore requires adjustment. On that premise, the Applicant also seeks a corresponding redistribution of **L.R. No. 772/7 I.R. No. 8266**. 2. The application is supported by the affidavit of the Applicant and the annexures thereto. 3. The Respondents oppose the application through their replying affidavits. Their position is that the impugned ruling disclosed no apparent error capable of correction through review. They contend that the Applicant's complaint raises substantive questions concerning the doctrine of survivorship and the legal effect of joint tenancy, issues which require determination through the appellate process rather than by way of review. **The Parties' Respective Positions** 1. The Applicant's case rests upon the contention that the Court inadvertently distributed property beyond the deceased's free estate. It is argued that the official search exhibited before the Court demonstrated that **Eldoret Municipality Block 9/17 (Border Farm)/79** was jointly registered in the names of the deceased and **Muchiku Kihuga**. Consequently, only the deceased's undivided one-half interest ought to have been distributed. According to the Applicant, the failure to appreciate that distinction constitutes an error apparent on the face of the record warranting review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 2. The Respondents' answer is that no such error exists. While acknowledging the joint registration, they contend that the property was held under a joint tenancy and that, by operation of the doctrine of survivorship, the entire proprietary interest vested in the deceased upon the death of the co-proprietor. In their view, the Applicant is not identifying an obvious or self-evident error but is instead inviting the Court to determine a contested question of law concerning proprietary interests. They therefore maintain that the Applicant's remedy, if any, lies by way of appeal and not review. **Issues for Determination** 1. Having considered the application and the parties' respective positions, I am of the respectful view that the following issues arise for determination: 2. **Whether the Applicant has satisfied the statutory threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.** 3. **Whether the complaint concerning Eldoret Municipality Block 9/17 (Border Farm)/79 discloses an error apparent on the face of the record warranting review.** 4. **Whether the consequential redistribution of L.R. No. 772/7 I.R. No. 8266 is merited.** **ANALYSIS** **(i) Whether the Applicant has satisfied the statutory threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules** 1. The present application invokes this Court's review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. That jurisdiction is statutory, exceptional and carefully circumscribed. It is not intended to afford an unsuccessful litigant an opportunity to re-open a concluded dispute merely because he considers the Court's decision to be erroneous in law or fact. Rather, it exists to enable the Court to correct manifest errors, consider newly discovered evidence which could not, despite the exercise of due diligence, have been produced at the time the decision was made, or grant relief for any other sufficient reason recognised by law. 2. The distinction between the appellate jurisdiction and the review jurisdiction has long been settled. In **National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR**, the Court of Appeal held that a review may be granted whenever it is necessary to correct an apparent error or omission on the part of the Court. However, the error or omission must be self-evident and should not require an elaborate argument to establish. The Court further emphasized that a review cannot be granted merely because another Judge would have reached a different conclusion or because the Court is alleged to have misapprehended the law. Such complaints belong properly to an appellate court. 3. The same principle was expressed earlier in **Abasi Belinda v Fredrick Kangwamu & Another [1963] EA 557**, where the former Court of Appeal for Eastern Africa observed that review is not intended to provide a dissatisfied litigant with an alternative forum through which the Court may be invited to reconsider the merits of its own decision. The jurisdiction is confined to correcting obvious errors and cannot be used as a substitute for an appeal. 4. The nature of an "error apparent on the face of the record" was authoritatively explained in **Nyamogo & Nyamogo Advocates v Kogo [2001] EA 173**, where the Court drew a clear distinction between an erroneous decision and an error apparent on the face of the record. The Court held that an error apparent must be obvious, patent and self-evident. Where the alleged error requires an elaborate process of reasoning, or where two opinions may reasonably be entertained, the matter ceases to be one of review and becomes one for appeal. 5. That position has been consistently reaffirmed. In **Francis Origo & Another v Jacob Kumali Mungala [2005] eKLR**, the Court of Appeal reiterated that an error apparent is one which is evident from the record itself without requiring extensive legal argument. Similarly, in **Muyodi v Industrial and Commercial Development Corporation & Another [2006] 1 EA 243**, the Court held that where an alleged error can only be demonstrated through detailed legal reasoning or where reasonable judicial minds may differ, such a complaint falls outside the province of review. 6. More recently, in **Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR**, the Court of Appeal cautioned that the review jurisdiction must never be exercised in a manner that blurs the distinction between review and appeal. A party dissatisfied with the legal correctness of a decision must ordinarily pursue the appellate process and not invite the same Court to sit on appeal over its own judgment. 7. The principles emerging from the foregoing authorities may be summarized as follows. First, review is a limited statutory jurisdiction exercisable only on the grounds expressly provided under Order 45 Rule 1 of the Civil Procedure Rules. Secondly, an error apparent on the face of the record must be patent, obvious and self-evident, requiring no elaborate process of legal reasoning. Thirdly, where the complaint calls upon the Court to evaluate competing legal arguments, interpret contested legal principles or reconsider the merits of its earlier decision, the dispute falls outside the review jurisdiction and belongs to the appellate process. Finally, these limitations are rooted in the broader public interest that litigation must attain finality, save where the law expressly permits otherwise. 8. Applying those principles to the present application, it is immediately apparent that the Applicant does not rely upon the discovery of new and important evidence which, despite the exercise of due diligence, could not have been produced when the impugned ruling was delivered. Neither does the application identify any other sufficient reason recognised under Order 45 Rule 1. The application rests entirely upon the contention that this Court committed an error apparent on the face of the record by distributing the entirety of **Eldoret Municipality Block 9/17 (Border Farm)/79**, whereas only the deceased's alleged half share ought to have formed part of the estate. 9. Whether that complaint truly discloses an error apparent on the face of the record must necessarily be determined against the legal principles governing co-ownership of land and the doctrine of survivorship. It is to that issue that I now turn. **(ii) Whether the complaint concerning Eldoret Municipality Block 9/17 (Border Farm)/79 discloses an error apparent on the face of the record** 1. The Applicant's grievance is straightforward. It is contended that the official search exhibited before the Court reflected that **Eldoret Municipality Block 9/17 (Border Farm)/79** was jointly registered in the names of the deceased and **Muchiku Kihuga**. On that basis, the Applicant argues that only the deceased's undivided one-half interest constituted free property available for distribution under the Law of Succession Act. The Applicant therefore maintains that this Court inadvertently distributed property that did not wholly belong to the estate, thereby committing an error apparent on the face of the record. 2. The Respondents, on the other hand, accept that the property was jointly registered but contend that it was held under a joint tenancy. Their position is that, upon the death of Muchiku Kihuga, the doctrine of survivorship operated automatically to vest the entire interest in the deceased, with the consequence that the whole property formed part of the deceased's estate. They therefore maintain that the Applicant's complaint does not identify a patent error but instead raises a substantive question concerning the legal consequences of joint proprietorship. 3. These competing positions inevitably invite consideration of the law governing co-ownership of land. Section 91 of the Land Registration Act recognises joint tenancy as one of the recognised forms of co-ownership and preserves the common law doctrine of survivorship, under which the interest of a deceased joint tenant ordinarily passes automatically to the surviving joint tenant by operation of law rather than by succession. 4. That principle has received judicial recognition. In **Federico Rosa v Estate of Ruth Wanjiru Mwithia (Deceased) [2024] eKLR**, the Court affirmed that the defining incident of a joint tenancy is the right of survivorship, by virtue of which the interest of a deceased joint tenant ordinarily does not devolve as part of his or her estate. Likewise, **In re Estate of Joseph Kipkemoi Limo (Deceased) [2025] eKLR** reaffirmed that, unless severed during the lifetime of the co-proprietors, a joint tenancy ordinarily results in the surviving proprietor becoming solely entitled to the property upon the death of the other joint tenant. 5. The significance of those authorities must, however, be properly understood. They are not cited for the purpose of determining whether survivorship in fact operated in respect of **Eldoret Municipality Block 9/17 (Border Farm)/79**. That issue is not directly before this Court. Rather, they illustrate that the Respondents' position is founded upon a recognised legal doctrine, just as the Applicant advances an alternative legal interpretation based upon the register and the asserted extent of the deceased's interest. 6. The Court must guard against the temptation of deciding more than is necessary for the determination of the present application. Whether the property was indeed held under a joint tenancy, whether that joint tenancy had been severed, if at all, before the death of Muchiku Kihuga, and whether the doctrine of survivorship ultimately applied are substantive questions of law that were live before the court in the matter and the court delivered itself on the matter. Whether the court was right or wrong in matters of law or fact cannot be within the purview of this court’s narrow review jurisdiction. 7. Applying the principles discussed under the first issue, I am unable to conclude that the complaint advanced by the Applicant constitutes an error apparent on the face of the record. As stated in **Nyamogo & Nyamogo Advocates v Kogo**, where two opinions may reasonably be entertained, the alleged error cannot properly be characterised as self-evident. Equally, **Muyodi v Industrial and Commercial Development Corporation & Another** buttresses that where the Court is required to engage in substantive legal reasoning or determine competing legal propositions, the matter falls outside the scope of review. 8. Accordingly, and without expressing any concluded opinion on the merits of the parties' competing interpretations concerning the doctrine of survivorship, I find that the Applicant has failed to establish a patent and self-evident error on the face of the record. What is ultimately sought is a reconsideration of the legal correctness of the ruling delivered on **27th February 2026**. That is a matter falling within the province of an appellate court and not within the limited jurisdiction of review. 9. It follows that the principal ground upon which the application is founded cannot succeed. **(iii) Whether the consequential redistribution of L.R. No. 772/7 I.R. No. 8266 is merited** 1. The Applicant further seeks the redistribution of **L.R. No. 772/7 I.R. No. 8266**, contending that once **Eldoret Municipality Block 9/17 (Border Farm)/79** is treated as constituting only the deceased's undivided half share, the parity underpinning the Court's adopted mode of distribution would be disturbed and ought to be restored. 2. That prayer is, however, entirely consequential. It does not constitute an independent ground for relief but is wholly dependent upon the success of the application for review. 3. Having found that the Applicant has failed to establish an error apparent on the face of the record within the meaning of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, the foundation upon which the prayer for redistribution rests necessarily collapses. The Court cannot reopen the mode of distribution merely because an alternative distribution is now proposed. To do so would require the Court to revisit the merits of its earlier determination and undertake a fresh evaluation of the competing proprietary interests, an exercise that lies beyond the limited jurisdiction of review. 4. Indeed, once the statutory threshold for review has not been met, the Court becomes **functus officio** in respect of the merits of the impugned decision, save only for the limited power to correct errors falling within the recognised grounds of review. As the Court of Appeal observed in **Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR**, the review jurisdiction cannot be employed to reopen matters that properly belong to the appellate process or to substitute one legal conclusion for another. 5. Accordingly, the prayer seeking the consequential redistribution of **L.R. No. 772/7 I.R. No. 8266** is devoid of an independent legal foundation and cannot be sustained. **DISPOSITION** 1. This Court has carefully considered the Summons for Review dated **9th March 2026**, the affidavits filed by the parties, the rival positions advanced, the applicable statutory framework and the relevant jurisprudence. 2. The jurisdiction to review a judgment or ruling is an exceptional jurisdiction whose exercise is confined to the limited grounds prescribed under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. It is neither intended nor designed to afford a disappointed litigant an opportunity to invite the Court to reconsider the legal correctness of its own decision. That function belongs to the appellate process. 3. Litigation must, save where the law expressly provides otherwise, attain finality. As the Supreme Court observed in **Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited & 2 Others [2014] eKLR**, the administration of justice requires that disputes should not be reopened endlessly outside the procedures established by law. The narrow scope of review serves that important objective by preserving the distinction between correcting manifest judicial error and exercising appellate jurisdiction. 4. The Court must constantly guard against conflating those distinct jurisdictions. To correct an obvious omission is one thing; to revisit the legal correctness of a concluded determination is quite another. The former preserves the integrity of judicial proceedings, while the latter belongs exclusively to the appellate process. The Applicant's complaint, though not frivolous, falls squarely within the latter category. 5. Accordingly, I am not persuaded that the Applicant has established any ground warranting the exercise of this Court's review jurisdiction. The application is therefore devoid of merit. **ORDERS** Accordingly, the Court makes the following orders: 1. **The Summons for Review dated 9th March 2026 is hereby dismissed.** 2. **The ruling delivered by this Court on 27th February 2026 shall remain undisturbed in its entirety.** 3. **The Amended Certificate of Confirmation of Grant issued pursuant to the said ruling shall remain valid and in force.** 4. **Any interim orders granted pending the hearing and determination of the application are hereby discharged.** 5. **The Administrators shall proceed with the implementation of the confirmed mode of distribution in accordance with the orders of this Court.** 6. **Given the nature of these succession proceedings and in order to preserve family harmony, each party shall bear his or her own costs of the application.** **It is so ordered.** **DATED SIGNED AND DELIVERED THIS 30TH DAY OF JULY 2026.** **A.K. NDUNG’U** **JUDGE**