https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7563

In re Estate of Erima Mulindo (Deceased) (Succession Cause 545 of 2001) [2026] KEHC 7563 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 7563 (KLR) Republic of Kenya In the High Court at Kakamega Succession Cause 545 of 2001 S Mbungi, J June 3, 2026 IN THE MATTER OF THE ESTATE OF ERIMA MULINDO ......... DECEASED Between Ranson Mwangala Mulindo Petitioner and Ibrahim Wanjala Mulindo 1st Objector Ariton Simiyu Mulindo 2nd Objector Ismael Wawire Mulindo 3rd Objector Ruling 1.Before this Court is the Summons for Review dated 20th November 2024 brought under Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules, Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. 2.The Applicants seek review of the judgment and the consequential Certificate of Confirmation of Grant issued by this Court. 3.The application is supported by the affidavit of Ibrahim Wanjala Mulindo sworn on 20th November 2024 and written submissions filed on behalf of the Applicants. 4.The Applicants contend that the judgment contains errors apparent on the face of the record, namely;i.that the Court failed to recognize parcels S. Kabras/Lukume/960 and S. Kabras/Lukume/962 as gifts inter vivos made by the deceased to two of his sons;ii.that the Court erred in rejecting the Applicants’ proposed mode of distribution; that the Court wrongly found discrimination against the daughters of the deceased;iii.that implementation of the confirmed grant would occasion displacement of beneficiaries from their established homes;iv.that grandchildren were retained as administrators despite the existence of surviving sons of the deceased; andv.that Charles Mulindo was allocated a share despite allegedly not being a child of the deceased. 5.The application was opposed. I have considered the application, the supporting affidavit, the court record, the judgment sought to be reviewed and the submissions filed. Issues For Determination 6.The issues arising for determination are:a.Whether the Court committed an error apparent on the face of the record in finding that parcels S. Kabras/lukume/960 and S. Kabras/lukume/962 were not gifts inter vivos made by the deceased to Ranson Mwangala Mulindo and Noah Wanjala Mulindo.b.Whether the Court committed an error apparent on the face of the record in finding that the proposed distribution of the estate discriminated against the daughters of the deceased.c.Whether the implementation challenges allegedly arising from the confirmed grant constitute a ground for review of the judgment.d.Whether the appointment and retention of grandchildren of the deceased as administrators constitutes an error apparent on the face of the record.e.Whether the allocation of a share of the estate to Charles Mulindo constitutes an error apparent on the face of the record. Analysis and Determination 7.Order 45 Rule 1 of the Civil Procedure Rules provides that a court may review its decree or order where there is:a.discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge;b.a mistake or error apparent on the face of the record; orc.any other sufficient reason. 8.A review is therefore not an avenue for a party dissatisfied with a judgment to re-open the case and invite the court to arrive at a different conclusion. 9.In the case of National Bank of Kenya Ltd v Ndungu Njau, the Court of Appeal 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.” 10.Similarly, in Francis Origo & Another v Jacob Kumali Mungala, the Court emphasized that a review cannot be used as a substitute for an appeal. 11.The Court must therefore determine whether the complaints raised disclose a patent and self-evident error or merely challenge the correctness of the judgment. a. Whether the Court committed an error apparent on the face of the record in finding that parcels S. Kabras/Lukume/960 and S. Kabras/Lukume/962 were not gifts inter vivos made by the deceased to Ranson Mwangala Mulindo and Noah Wanjala Mulindo. 12.The Applicants submit that parcels S. Kabras/Lukume/960 and S. Kabras/Lukume/962 were gifts inter vivos given by the deceased to Ranson Mwangala Mulindo and Noah Wanjala Mulindo. 13.The basis of the argument is that the parcels were of nearly equal size, neighboring each other and were registered on the same date. 14.A review court does not re-evaluate evidence to reach a different conclusion. The issue whether those parcels constituted gifts inter vivos was a substantive question that was before the Court during the hearing and was determined on the basis of the evidence presented. 15.The Applicants are essentially asking the Court to revisit its findings on the evidence and draw different inferences. Such an exercise falls within appellate jurisdiction and not review jurisdiction. 16.As was held in National Bank of Kenya Ltd v Ndungu Njau , a review cannot be granted merely because the court may have reached an incorrect conclusion. 17.I therefore find that no error apparent on the face of the record has been demonstrated regarding the finding on gifts inter vivos. b. Whether the Court committed an error apparent on the face of the record in finding that the proposed distribution of the estate discriminated against the daughters of the deceased. 18.The Applicants contend that the daughters of the deceased had consented through an affidavit to receive smaller portions than their brothers and that the Court therefore erred in finding discrimination. 19.The judgment addressed the constitutional and statutory principles governing succession and equality of beneficiaries. 20.Section 38 of the Law of Succession Act provides for equal distribution among surviving children where an intestate is survived by children only. 21.Further, Article 27 of the Constitution prohibits discrimination on any ground, including sex and marital status. 22.The Court’s determination was therefore a legal conclusion reached after considering the law and the evidence. Whether that conclusion was correct or otherwise is a matter that may be challenged on appeal. 23.In Pancras T. Swai v Kenya Breweries Limited, the Court held that an erroneous conclusion of law or fact is not necessarily a ground for review. 24.The complaint raised by the Applicants therefore does not disclose an apparent error on the face of the record. c. Whether the implementation challenges allegedly arising from the confirmed grant constitute a ground for review of the judgment. 25.The Applicants further argue that implementation of the confirmed grant would require some beneficiaries to relocate and possibly demolish long-established homes. 26.The Court appreciates that implementation of succession orders may present practical challenges. However, the test under Order 45 Rule 1 is not whether implementation may be difficult but whether there exists a patent error in the judgment itself. 27.The alleged practical difficulties emerged after surveyors were consulted and do not demonstrate any self-evident error in the judgment. 28.The Applicants have therefore failed to establish a ground for review on this basis. d. Whether the appointment of grandchildren as administrators constitutes an error apparent on the face of the record 29.The Applicants argue that grandchildren of the deceased were retained as administrators despite the existence of surviving sons of the deceased. 30.The question of administration was before the Court and was determined after considering the circumstances of the estate and the parties before it. 31.The Applicants have not identified any clerical mistake, omission or manifest error in that determination. What is being challenged is the correctness of the Court’s exercise of discretion, a matter that is properly the subject of an appeal. 32.I therefore find that no error apparent on the face of the record has been established regarding the appointment of the administrators. e. Whether allocation of a share to Charles Mulindo constitutes an error apparent on the face of the record 33.The Applicants contend that evidence was led that Charles Mulindo was not a son of the deceased and therefore ought not to have benefited from the estate. 34.The record shows that this issue was part of the contested matters before the Court. The Court evaluated the evidence and rendered its determination. 35.The Applicants invite the Court to reassess the evidence and reach a different conclusion. Such a request falls outside the scope of review proceedings. 36.As observed in Francis Origo & Another v Jacob Kumali Mungala (supra), review is not available where a party merely seeks a rehearing of issues already determined. 37.Consequently, I find that no basis has been established for review on this ground. 38.Upon examining all the complaints raised by the Applicants, it is evident that they challenge the merits of the judgment, the evaluation of evidence and the legal conclusions reached by the Court. 39.The Applicants have not demonstrated any self-evident error, discovery of new evidence or other sufficient reason warranting review. 40.The issues raised are therefore matters properly falling within the appellate jurisdiction of a higher court and not within the limited jurisdiction of review. 41.Having carefully considered the application, the affidavit in support, the submissions and the applicable law, I am not satisfied that the Applicants have established discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason to warrant review of the judgment and the Certificate of Confirmation of Grant. 42.Accordingly, the Summons dated 20th November 2024 lacks merit and is hereby dismissed. 43.Given the nature of this dispute as a family succession matter, each party shall bear its own costs. 44.Right of Appeal 30 days explained. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 3RD DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Zilda/VelmaParties absent.Mr. Munyendo for the Respondent absent.Mr. Mukavale for the Appellant absent.