https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12027

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAPENGURIA** **SUCCESSION CAUSE NO. 9 OF 2022** **IN THE MATTER OF THE ESTATE OF KEMEI CHEOMBIR PSELILAT – DECEASED** **BETWEEN** **CHEMORIOT CHEPKITE TUKOO……………….…….... 1ST ADMINISTRAATOR** **CHEPOCHECHEO CHOMBIR ATODONGOR …………...… 2ND ADMINISTRATOR** **ESTHER CHEPOSEKER ATODONGOR …………….……. 3RD ADMINISTRATOR** * **V E R S U S –** **EMILY CHEPKEMI LEMUKAI ………………………………………... OBJECTOR** **FRANCIS ODUOR MWAMO……………………………………..…..…. OBJECTOR** **R U L I N G** 1. The application dated 2/12/2025 was filed by the 3rd Administrator. **Esther Cheposeker Atodongor** in which she seeks the following orders 2. **That the Ruling delivered on 30/10/2025 be reviewed or varied to the extent that the order directing that the costs of the County Surveyor be shared equally among the deceased’s houses settled on West Pokot A/71 West Pokot/Chepkono 179 and West Pokot Kishaunet/134 be set aside;** 3. **That an order do issue that the full cost of the survey be borne by the 1st & 2nd Administrators being the parties who moved the court for orders requiring the County Surveyor to undertake a ground Survey over West Pokot A/ 71, West Pokot/ Chepkono/179 and West Pokot Kishaunet/134** 4. **That costs be provided for.** 5. The application is premised on grounds found in the body of the applicant and the affidavit of the applicant dated 2/12/2025. 6. The applicant’s contention is that this court, on 30/10/2025 delivered a Ruling directing the County Surveyor to undertake a ground survey of the three parcels of land forming the deceased’s estate and that the ruling related to an application made by Moses Kiarie Advocates, on behalf of the 1st and 2nd Administrator; that the order made by the court is unjust, unfair and prejudicial to the applicant; that only the 1st and 2nd Administrators stand to benefit from the said outcome of the Survey; that it is an error or mistake apparent on the face of the record because the court failed to address the fact that the applicant did not initiate the Survey application; that when she filed the application for summons for confirmation of grant dated 5/6/2023 for 1,3,4,5,7 & 9th houses, she made the proposals on distribution and attached the official search certificates hence there was no need for Survey; that it is a principle of the court that the one who moves the court bears the costs; that the court’s order has imposed on the applicant. 7. **Ms. Chebet Counsel** for the 3rd protestor supported the application and did not file any response. Emily, the 2nd protestor who appears in person also supported the application. 8. The second administrator **Chepochechendo Chombir** opposed the application and filed a replying affidavit dated 18/3/2025 on behalf of herself and the 1stAdministrator in which she deponed that the court found, after hearing the parties that it was important to establish where each of the families are settled; that the court also found that the portions given to each of the houses was not equal in size in acreage and that some of the wives and sons had sold most of their land which makes it necessary for the Surveyor to go to the ground to determine what has been sold and how much is left, that the Kishaunet land had to be surveyed to determine who resides on it; 9. That at the second last paragraph of the Court’s Ruling, the court observed that even without the application, it would have ordered for survey of the estate; 10. It was further deponed that the Survey is not meant to benefit the 1st and 2nd Administrator alone but enable the court in distribution of the estate and therefore there is no error that the court made. However if aggrieved the applicant should have appealed. **Applicants Submissions** 1. Mr. Barongo Advocates filed submissions dated 24/3/2026. Counsel identified two issues for determination being:- 2. **Whether the applicants have met the legal threshold for review;** 3. **Whether the order of the court directing sharing the costs of Survey is proper and justified in the circumstances;** 4. **Who bears the costs?** 5. Counsel submitted that the jurisdiction to review is enshrined on Section 80 Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, that an aggrieved party may apply for review on account of discovery of new evidence, error apparent on the face of the record or any other sufficient reason. 6. Counsel relied on the decision of **National Bank of Kenya Ltd -V- Njau (1997) KECA 71 and Origo & Another -V- Mungala (2005) KECA 356** inwhich the court held that an applicant must strictly demonstrate that his case falls within the perimeters of Order 45 Civil Procedure Rules. 7. Counsel argued that he relies on the ground of any other sufficient reason in that the court’s order in directing equal share of the Surveyors costs, failed to consider that the survey exercise was initiated by the 1st and 2nd Administrators and yet the order imposes financial liability upon the parties who neither sought nor necessitated the survey exercise, thus occasioning an injustice. 8. Whether the court’s order was justified, Counsel urged that the order imposed a financial burden and that it is the 1st and 2nd applicants who have necessitated this application and should bear the costs. **Respondent’s Submissions** 1. The firm of Kiarie Advocates filed submissions on behalf of the 1st and 2nd Administrators dated 9/4/2026. Counsel identified the issues to be considered being whether the applicant has met the legal threshold under Order 45 Rule 1 of the Civil Procedure Rules as follows:- 2. **Discovery of new and important matter;** 3. **Mistake or error apparent on the face of the record;** 4. **Any other sufficient reason.** 5. He relied on the Supreme Court decision of **Parliamentary Service Commission -V- Martin Nyaga Wambora & others (2018) KESC 74, Court of Appeal in National Bank of Kenya Ltd -V- Ndungu Njau (1997) eKLR, Pancras T. Swai -v- Kenya Breweries Limited (2014) eKLR and Republic -V- Advocates Disciplinary Tribunal exparte Apollo Mboya (2019) eKLR .** Counsel submitted that the applicant has not demonstrated any error on the face of the record but that the applicant seems to disagree with the courts reasoning. 6. Counsel urged that in the **National Bank of Kenya Ltd case** the court observed that an error that requires argument and interpretation cannot be an error apparent on the face of the record; that what the applicant is seeking is to reopen the merits of the court’s decision; that in **Pancras Case, (Supra)** the court held that one should not use review to reargue a case. 7. As regards discovery of new or important matter, Counsel urged that the applicant has not alluded to any nor has he demonstrated any sufficient cause. 8. On the issue of costs; Counsel submitted that administrators have a fiduciary duty to ensure proper administration of the deceased’s estate and the court’s order for Survey was well intentioned to ensure fairness to all beneficiaries. 9. That so far, the courts findings that some houses have sold part of the estate and hence the necessity of survey they have not shown it to be erroneous and the application should be dismissed. 10. The court has considered the application the response by the Respondents and the rival submissions of counsel. 11. An application for review is governed by section 80 of Civil Procedure Act and Order 45 Rule 1 of Civil Procedure Rules. It provides as follows **80. Review** **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.** 1. An applicant for review has to satisfy the following conditions 2. **That there is discovery of new and important matter;** 3. **There is a mistake or error apparent on the face of the record;** 4. **For any other sufficient reason.** 5. The Supreme Court in **Parliamentary Service Commission Supra** at Paragraph 32 set down the guiding principles for applications for review of a decision of the court **“Consequently, drawing from the case law above, particularly Mbogo and Another -V- Shah, we lay down the following as guiding principles for applications(s) for review of a decision of the court made in exercise of discretion as follows:** 1. **A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a Limited Bench of this court;** 2. **Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the court;** 3. **An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application;** 4. **In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the court, how the court erred in the exercise of its discretion or exercised it whimsically.** 5. **During such review application, in focus is the decision of the Court and not the merit of the substantive motion subject of the decision under review;** 6. **The applicant has to satisfactorily demonstrate that the Judge(s) misdirected themselves in exercise discretion and:** 1. ***As a result, a wrong decision was arrived at; or*** 2. ***It is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice*** 6. The scope of review was also well captured by the Court of Appeal in **National Bank of Kenya Limited -V- Njau** (Supra) which it said at paragraph 16, **“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 provision of law cannot be a ground for review”.** 1. As to whether there were discovery of new and important matter, the applicant did not allude to any. 2. The second principle is that there is an error apparent on the face of the record. As held in the above cited case of **National Bank Supra,** the error must be self evident and should not require elaborate argument to be established. In **Republic -vs- Advocates Disciplinary Tribunal ex-parte Appollo Mboya Supra**, the court said ***“An error apparent on the face of the record must be obvious and patent, not something that can be established by a long-drawn process of reasoning”***. Although at paragraph 7 of the applicant’s affidavit, it is deponed that there was an error apparent on the face of the record, the applicant did not point out the said error. 3. Third requirement is that there is sufficient cause for review. This is what the applicant relied on, the reason being that the applicants did not request for a survey but the 1st and 2nd administrators did and they should bear the costs of survey. Clearly the applicant wants review of the merits of the court’s decision in ordering the parties to share cost of the survey. 4. The court gave the reasons why the survey was necessary and why all the parties should all bear the costs. The court had observed that boundaries need to be ascertained because some of the benefits had intermeddled with the estate by selling and hence necessary to survey the ground. This exercise is the benefit of the whole estate not only the 1st and 2nd administrators. The court is guided by the decision in **Pancras T. Swai (Supra**) the court said that parties should not use review to try and re-argue their cases. 5. In the instant case, the court is of the view that the applicant is trying to re-open the application to have it reconsidered on the merits. This is because the record is clear. At the second last paragraph of this court’s ruling the court stated that it would still have ordered for a survey of the whole estate even if the Respondents had not made the application for survey. 6. The upshot is that the applicant has not met the threshold required to grant an order of review. The application is dismissed with the applicants bearing the costs. **Dated signed and delivered at Kapenguria this 30th day of July 2026.** **HON. R.P.V. WENDOH** **JUDGE.** In the presence of ;- Mr. Barongo for Applicants Ms Sugut for 3rd Administrator M/s Mufutu holding brief Mr. Kiarie for 1st and 2nd Administrator Court Assistants – Juma/Hellen