https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11374

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. 85 OF 2019** **IN THE MATTER OF THE ESTATE OF NDUKU KARIGI (DECEASED)** **BEATRICE GICHUGU NDUKU……………………………..………………APPLICANT** **VERSUS** **DANSON MUBARI NDUKU...................................................................1ST RESPONDENT** **PAULINE WANJIRU NDUKU……….............................................…..2ND RESPONDENT** **RULING** 1. By summons dated 29/7/2024 pursuant to Section 47 and 76 (e) of the Law of Succession Act, Rules 63 and 73 of the Probate and Administration Rules, Order 45 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law, the 1st Respondent seeks that: 1. *The honourable court do partly review the judgment and/or orders of 29th September, 2023 and issue an amended certificate as set out in paragraph 11 of the supporting affidavit herein and/or grant any other orders that this court deems fit.* 2. *The honourable court do revoke and/or annul the grant of letters of administration made on 24th September, 2018 in Chief Magistrate Court Succession Cause No. 170 of 2018 - Kerugoya and issue fresh grant of letters of administration in favour of Beatrice Gichugu Nduku and Danson Mubari Nduku.* 3. *The respondents do execute the completion documents and/or the forms RLA 50 (7) and RLA 42 (19) with regard to title number Inoi/Kamondo/1814 within the next 7 (seven) days and in default the Deputy Registrar of this court be ordered to execute the same on behalf of the respondents.* 4. *The 5th respondent do produce the original title deed to land parcel number Inoi/Kamondo/1814 within the next 7 (seven) days and in default the land registrar-Kirinyaga do dispense in production of the original title deed to land parcel number Inoi/Kamondo/1814, the respondents’ identity cards, PIN number certificates and other personal prerequisite documents.* 5. *The officer incharge Kerugoya police station do provide security during the partition and/or sub-division of title number Inoi/Kamondo/1814.* 6. *The costs be in the cause.* 2. The application is predicated on the grounds on the face of it and supporting affidavit of Danson Mubari Nduku, the 1st Respondent herein, sworn on even date. He avers that he, Beatrice Gichugu Nduku and Paul Muriuki Nduku were appointed as administrators of the estate on 24/9/2018 in Kerugoya Succession Cause No. 170/2018, which was confirmed on 23/10/2019. Pursuant to the death of Paul Muriuki Nduku in 2019, the court rightly held that his share would revert to the estate of the deceased for redistribution. John Muriithi Nduku is also deceased, and his share should revert to the estate of the deceased for redistribution, while James Muriuki Nduku has since attained the age of majority. On 22/5/2024, the trial court directed that any issue regarding the review of the certificate of grant be determined by this court, and it is on that basis that the judgment of this court and/or orders of 29/9/2023 should be reviewed and amended. The respondents have refused to sign the completion documents and deliver the original title deed regarding **L.R No. Inoi/Kamondo/1814 (henceforth called the estate property)** and other personal prerequisite documents, hence this application. 3. By a Notice of Motion under certificate of urgency dated 14/10/2024, brought under Order 45 Rule 1 (1) of the Civil Procedure Rules and Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, the Applicant seeks that: 1. *Spent* 2. *The Honourable Court be pleased to issue an amended grant based on the judgment of this court dated 29th September 2023.* 3. *The Honourable Court be pleased to review and or make clarifications on its judgment delivered on 29/9/2023 regarding the estate of the deceased and who exactly benefits from it as it seems there is a mistake or an error on the face of the record.* 4. *The costs of this application be provided for.* 4. The application is premised on the grounds on the face of it and supporting affidavit of Beatrice Gichugu Nduku, the Applicant herein sworn on even date. She avers that she is the surviving widow of the deceased and the Respondents are her step-children. There is a contradiction between the judgment of this court and the trial court’s grant. The trial court’s judgment was very clear that the boys had acquired a portion of the estate of the deceased and could not inherit again. 5. The Appellant respondent/Respondent response is that in opposing the application by a replying Affidavit dated 18/10/2024, they filed their own application dated 14/10/2024 seeking the following: * That the Honourable Court be pleased to issue an amended grant based on the Judgment of this court dated 29/9/2023. * That the Honorable Court be pleased to review and or make clarification on its judgment delivered on 29/9/2023 regarding the estate of the deceased and who exactly benefits from it as it seems there is a mistake or an error on the face of the record. **Issue for determination** 1. The issue for the court is whether there is need for review or an order for clarification of judgment is necessary for the parties to move on with the implementation of the judgment. **Submissions** 1. The Applicant urges that the lower court judgment dated 23/10/2019 was very clear that the only people who were to inherit the deceased property were the girls and the surviving widow, as the boys had already inherited one acre each during the lifetime of the deceased. She urges that the share of Paul Muriuki Nduku can only be distributed among the beneficiaries who are to benefit from the estate, and that is the girls. In praying for the dismissal of the application dated 29/7/2024, she urges the court to issue a fresh grant in line with the judgment of this court of 29/9/2023. She urges that John Muriithi Nduku was bequeathed land by the deceased during his lifetime, and his said share ought to be dealt with separately from these proceedings. Likewise, she urges that James Muriuki Nduku can properly move the court to be acknowledged as an adult for purposes of inheritance in this estate. 2. The Respondents urge that since Paul Muriuki Nduku died in 2019 while the grant was made on 24/9/2018, it ought to be revoked and/or annulled under Section 76 (e) of the Law of Succession Act on the basis that it has become inoperative. Alternatively, this court can make a declaration vesting the powers and duties of the personal representatives to Beatrice Gichugu Nduku and appoint her as the sole administrator for purposes of completion of the process, by dint of section 81 of the Law of Succession Act. They urge that the death of John Muriithi Nduku during the pendency of the appeal is a ground for review, and rely on ***John Mundi Njoroge & 9 Others v Cecilia Muthoni Njoroge & Another (2016) eKLR, Re Estate of Mercy Wanjiku Mbiti (Deceased) (2019) eKLR and CKC v Chuba & Another (2023) eKLR***. **Analysis and Determination** 1. After carefully considering the applications, the responses and the submissions on record together with the authorities relied on, this court discerns the singular issue for determination to be whether the threshold for review has been met. 2. Review is provided for under Order 45 Rule 1 of the Civil Procedure Rules as follows: ***“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 made the order without unreasonable delay.”*** 3. Order 45 Rule 2 provides as follows: *“****2. To whom applications for review may be made [Order 45, rule 2]*** *(1)An application for review of a decree or order of a court,* ***upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree,*** *shall be made only to the judge who passed the decree, or made the order sought to be reviewed.* *(2) If the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to that court at the time the application comes for hearing.* *(3) If the judge who passed the decree or made the order is still attached to the court but is precluded by absence or other cause for a period of 3 months next after the application for review is lodged, the application may be heard by such other judge as the Chief Justice may designate.”* 1. Not being an application based *“upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree,”* this application for review is not affected by the provisions of Order 45 rule 2 of the Civil Procedure Rules. Even if it was tought appropriate to have teh same judge who gave teh judgment ot consider the amendments sought herein, it is not possible and the requirement would be waived as L. Njuguna, J., the Judge who determined the appeal is no longer a judge of this Court having been appointed Judge of Appeal and now seats at the Court of Appeal. 2. The applications were filed on 30/7/2024 and 6/11/2024, while the orders sought to be reviewed were made on 29/9/2023. That delay, though inordinate, may be explained by the other processes taken before the trial court, before the parties eventually decided to move this court for review. The need for clarification urged by both sides would in the interests of justice excuse the delay. 3. In its judgment of 23/10/2019, the trial court determined that: ***“The sons of the deceased are therefore not entitled to any share of the remaining estate since they had already been allocated land. One of the sons Paul Muriuki Nduku (deceased) had not been allocated his share. Since the sons facilitated the subdivision of the land, I will exercise my discretion under section 27 of the Law of Succession Act and direct that his share be sold and given to the sons to compensate them for the money on the subdivision. The deceased estate comprising land parcel no. INOI/KAMONDO/1814 shall be divided to the daughters according to the number of each house bearing in mind the 3rd house in which there is a surviving widow. The share of the deceased Paul Muriuki Nduku shall be sold and the proceeds be shared amongst the sons of the deceased.”*** 1. In its judgment dated 29/9/2023, this court *(L. Njuguna J, as she then was)* held that: ***“In order to achieve equitable distribution of the estate, sometimes (not always) equal distribution is the way to go. I agree with the argument that all the members of the family of the deceased from the 3 houses, who did not receive any property from the deceased prior to his death should be the focus of this appeal...Therefore, the share of the estate intended for the deceased beneficiary will revert to the estate of the deceased for redistribution. In light of this, the trial magistrate indeed erred in awarding a part of the estate to Paul Muriuki Nduku. Additionally, when it comes to Paul Muriuki Nduku as a deceased administrator of the estate, section 81 of the Law of Succession Act applies. On the question of compensation for expenses incurred during subdivision of the land, the amounts were not substantiated and so the same cannot be recovered through disposing the inheritance of the deceased beneficiary as we have established the inheritance will go to the estate of the deceased beneficiary. On the issue of the shares to be held in trust for the presumed minors, it is too late in the day to bring this issue as an appellate court may not be able to take any evidence on whether or not they are now adults. In any event, the alleged minors can move the court to be acknowledged as adults for purposes of inheritance in this estate...However, the appeal herein partially succeeds with orders as follows:*** 1. ***The trial court’s judgment only with regard to apportioning of a share of the estate of the deceased to Paul Nduku (deceased), is hereby set aside.*** 2. ***The certificate of confirmation of grant issued on 23rd October 2019 is hereby upheld.”*** 3. While the trial court was very candid that the estate property was to be distributed equally among the daughters of the deceased and the widow, it is perplexing that the certificate of confirmation of grant subsequently issued on 23/10/2019 inadvertently included the 1st Respondent and Cyrus Muthike Nduku as beneficiaries. That inclusion constitutes an error apparent on the face of the record. See ***Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2 Others*** [2020] KECA 633 (KLR) on the definition of an error apparent on the face of the record. 4. Having expressly set aside the allocation of the share to the deceased beneficiary, Paul Muriuki Nduku, by its judgment dated 29/9/2023, this court (L. Njuguna, J.) nonetheless upheld the very certificate of confirmation of grant that erroneously provided for the 2 sons of the deceased. Furthermore, this court explicitly rejected the purported compensation to the sons for their alleged contribution towards the subdivision of the estate property, and therefore, their inclusion in the certificate of confirmation of grant, was plainly wrong and clearly made in error or mistake. 5. The court is satisfied that the Applicant has demonstrated sufficient grounds to warrant the grant of the review sought under Order 45 Rule 1 of the Civil Procedure Rules. 6. Upon the demise of Paul Muriuki Nduku, one of the administrators herein, the provisions of Section 81 of the Law of Succession Act came into operation, with the effect that all his powers and duties automatically vested in the Applicant and the 1st Respondent, the surviving administrators herein. The grant did not therefore become inoperative by reason of the death of Paul Muriuki Nduku, as wrongly urged by the Respondents. 7. The inevitable conclusion is that the application dated 29/7/2024 is without merit and it is dismissed. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds that application dated 14/10/2024 is merited, and it is allowed in the following terms: 1. The certificate of Confirmation of Grant dated 23/10/2019 is hereby set aside. 2. A fresh certificate of confirmation of grant shall be issued, distributing the estate property, to wit, L.R. No. INOI/KAMONDO/1814 equally among Jecinta Kariuko Nyaga, Edith Ruguru Mwangi, Rose Wangechi Nzioka, Pauline Wanjiru Nduku, Beatrice Gichugu Nduku, Susan Wanjiru Nduku, Joyce Muthoni Nduku, Ann Wairimu Nduku, Regina Wambura Nduku, Hellen Njoki Nduku, Gladys Njeri Nduku and Grace Mabuti Muriuki. 3. The share of John Muriithi Nduku and James Muriuki Nduku shall be held in trust by the administrators jointly. 2. There shall be no order as to costs in this succession matter. *Order accordingly.* **DATED AND DELIVERED THIS 23RD DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Kipruto for Ms. Kimotho for Appellant. Mr. Mwangi K. for Mr. Ngigi for the Respondent.