https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9890

In re Estate of Cherutich (Succession Cause 33 of 2022) [2026] KEHC 9890 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 9890 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 33 of 2022 JRA Wananda, J July 3, 2026 IN THE ESTATE OF THE LATE PAUL KIMITEI CHERUTICH Between Samson Lagat Kimitei Objector and Haron Cheboi Cherutich 1st Petitioner Selina Jeptanui Cherutich 2nd Petitioner Ruling 1.As the Petitioners, on one part, and the Objector, on the other, could not agree on distribution of the estate in this matter, I rendered a Ruling herein on 7/06/2024 whereof I distributed the estate amongst the 3 houses comprising the family of the deceased. While the Objector is a scion of the 2nd house, the 1st Petitioner is from the 1st house while the 2nd Petitioner is from the 3rd house. I understand that the 3 parties are all co-Administrators. 2.The Objector has now returned to Court with the Application the subject of this instant Ruling, namely, the Chamber Summons dated 28/08/2024, filed through Messrs Chebii & Co., who have replaced the Objector’s former Advocates, Messrs Kogo Kimutai & Co., The Application seeks orders as follows:i.That this Honourable Court be pleased to review its Ruling delivered on 7/06/2024.ii.That this Honourable Court be pleased to do a review regarding one of the suit lands named Karuna/Sosiani Block 9 (Cheplaskei)/50.iii.That 6 acres be subtracted from the initial 28.6 acres of Karuna/Sosiani Block 9 (Cheplaskei)/50.iv.That the six acres had been bought by a son of the second house Lazarus Kimitei (deceased) therefore should not form part of the distributed land.v.That the remaining 22 acres be distributed equally among the beneficiaries which equates to 7 acres each. 3.The Application is supported by two short Affidavits, one sworn by the Objector, and one by one Felix Kipkurgat Ndimwo. The Objector’s Affidavit basically simply restates the above prayers in a narrative form. On his part, the said Felix Kipkurgat Ndimwo deponed that he knew both the late Lazarus Kimitei and the deceased herein, as they were his village-mates, and that the late Lazarus Kimitei had purchased 6 acres of the said property through his father, the deceased herein, Neither of the Affidavits is however supported by any annexures or supporting documents. 4.The Petitioners have opposed the Application by way of the equally brief Replying Affidavit sworn by the 1st Petitioner on 8/01/2026, and filed through their Advocates, Messrs Rioba Omboto & Co. He deponed that the Application is premised on wrong provisions of the law, as it does not demonstrate the grounds for review and that the proper way of moving the Court was to seek rectification of the Grant. He deponed further that the allegations that the property Karuna/Sosiani Block 9 (Cheplaskei)/50 was purchased by the late Lazarus Kimitei is not supported by any material evidence, and he asserted that to the best of his knowledge, the said Lazarus Kimitei never purchased any land from the deceased and is thus entitled to 3 acres out of the property. He also contended that no discovery of new and important evidence that was not within the knowledge of the Objector had been demonstrated. 5.The parties then filed written Submissions on the Application. The Objector’s Submissions is dated 13/02/2026, while the Objector’s is dated 10/02/2026. 6.In his Submissions, Dr. Chebii basically reiterated the matters already recounted in the Application and the Supporting Affidavits, and restated the provisions of law applicable in Applications for review. Regarding the allegation that the Objector’s father purchased 6 cares of the property, Counsel, in attempting to make clarifications thereon, introduced new “facts” that were never deponed to in the Affidavits, including that prior to his death, the deceased informed his children that at the time of distribution, they should give the said Lazarus Kimitei his 6 acres before proceeding to share the rest of the property, that the Objector does not have a copy of the Sale Agreement for the reasons that it was in the possession of the late Lazarus Kimitei (his father), and the deceased, and cannot now be traced, and also that during the Succession proceedings, the above information was not within the Objector’s knowledge. Counsel also submitted that under the doctrine of “hotchpotch”, the Court, while distributing an estate, is required to put into consideration any earlier settlements during the lifetime of the deceased. He also cited Section 42(a) of the Law of Succession Act. In conclusion, he prayed that the Application be allowed with costs, and he also cited several authorities. 7.Mr. Omboto, too, reiterated the matters already recounted in the Replying Affidavits, and restated the provisions of law applicable in Applications for review. He then reiterated that the matters averred in the Application are not supported by any supporting documents and asserted that burden of proof lies with the person who alleges. He also submitted that allowing the Application would defeat the principle of finality as it would re-open litigation on a confirmed Grant yet no sufficient grounds have been demonstrated for review or rectification. He, too, also cited several authorities. Determination 8.The one issue that I am called upon to determine in this matter is “whether this Court should review the mode of distribution it applied in its Ruling delivered on 24/06/2024, particularly in respect to 6 acres of the property, Karuna/Sosiani Block 9 (Cheplaskei)/50, and re-distribute the estate using a different mode of distribution.” 9.Review of orders in Succession matters is, just like in civil litigation, governed by Order 45 of the Civil Procedure Rules, which by Rule 63(1) of the Probate and Administration Rules, is one of the provisions of the Civil Procedure Rules imported into the Law of Succession Act (see John Mundia Njoroge & 9 Others vs. Cecilia Muthoni Njoroge & Another [2016] eKLR). 10.Order 45 provides for three circumstances under which an order for review can be made. The first one is where there has been “discovery of new and important matter or evidence”. The second is where there has been “a mistake or error apparent on the face of the record”. The third ground is “for any other sufficient reason”. The Objector does not disclose the ground he has come under but trying my best to rummage through his Counsel’s Submissions, I presume that it is alleged “discovery of new and important matter or evidence”. 11.Rules 49 and 73 of the Probate and Administration Rules, read together, also permit the Court to invoke its inherent jurisdiction to issue appropriate orders to meet the ends of justice, and to prevent abuse of process. The said provisions, read with Section 47 of the Law of Succession Act, are wide enough to cover review. 12.Regarding the ground of “discovery of new and important matter or evidence, Kuloba J, in the case of Lakesteel Supplies vs. Dr. Badia and Anor Kisumu HCCC No. 191 of 1994, stated as follows:“The exercise of review entails a judicial re-examination, that is to say, a reconsideration, and a second view or examination, and a consideration for purposes of correction of a decree or order on a former occasion. And one procures such examination and correction, alteration or reversal of a former position for any of the reasons set out above. The court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 44 rule 1, of the Civil Procedure Rules. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. It can only lie if one of the grounds is shown, one cannot elaborately go into evidence again and then reverse the decree or order as that would be acting without jurisdiction, and to be sitting in appeal. The object is not to enable a judge to rewrite a second judgement or ruling because the first one is wrong … On an application for review, the court is to see whether any evident error or omission needs correction or is otherwise a requisite for ends of justice. The power, which inheres in every court of plenary jurisdiction, is exercised to prevent miscarriage of justice or to correct grave and palpable errors. It is a discretionary power. In the present application it has not been said or even suggested that after the passing of the order sought to be reviewed, there is a discovery of new and important matter of evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the ruling was made. 13.The phrase “discovery of new and important matter or evidence, therefore basically means evidence which was not available at the time of the earlier decision and which, despite exercise of due diligence, could not have been availed before that earlier decision, and is evidence that would have been admissible, of high probative value and capable of belief, and which, if adduced would probably have led to a different verdict. A Court considering whether evidence is “new” and “important” must therefore ascertain that it is material to, or capable of affecting or varying the earlier decision. 14.The nature of review sought by the Objector in the instant Application is that 6 acres be isolated from the initial 28.6 acres comprising the property Karuna/Sosiani Block 9 (Cheplaskei)/50. The basis of the above prayer is that the 6 acres had been purchased by the said Lazarus Kimitei, the Objector’s father, thus should not therefore form part of the estate of the deceased land. As aforesaid, the Supporting Affidavit does not say anything whatsoever about the source of this information, or why it was never raised at the hearing preceding the distribution made by the Court. As aforesaid, it is only in the Submissions that Dr. Chebii purported to give explanations by irregularly introducing new “facts” that were never deponed in the Affidavits. Counsel purported to explain that prior to his death, the deceased informed his children that at the time of distribution, they should give the said Lazarus Kimitei his 6 acres before proceeding to share the rest of the property, that the Objector does not have a copy of the Sale Agreement for the reasons that it was in the possession of his the late Lazarus Kimitei (his father) and the deceased, and cannot now be traced, and also that during the distribution proceedings, the above information was not within the Objector’s knowledge 15.Considering his acknowledged legal acumen, experience and seniority, I am certain that Dr. Chebii knows all too well that what he has purported to do here is not procedural. Counsel is no doubt aware that Submissions can only be based on the pleadings, the evidence tendered and the law, and cannot be an avenue for introducing new evidence. This is because final written submissions is simply a “marketing language”, or an advocacy tool employed by Lawyers or parties to persuade the Court to interpret the already presented evidence in their favour. It is therefore strictly limited to crystallizing, analyzing, and applying the facts, testimony, and documents that were already formally presented. I have to therefore disregard this untested evidence introduced belatedly in the Submissions by Counsel. 16.In any case, as correctly pointed out by Mr. Omboto, the allegation of purchase of the 6 acres by the Objector’s father is not supported by a single document as neither of the two Affidavits filed by the Objector has an annexure, not even one, no Sale Agreement, no Land Control Board Consent, no transfer documents, no payment receipts, and nu such document whatsoever. The source of the information that the Objector’s father purchased the 6 acres is also not revealed. 17.Further, the allegation that Lazarus Kimitei had purchased the 6 acres is not even a new matter. The same was raised earlier and the submission thereon was captured in the impugned Ruling. This Court was therefore fully alive to that allegation even where it distributed the estate innthe matter it did. 18.For the above reasons, there is no doubt that the ground that there “discovery of new and important matter or evidence, has not been demonstrated. The Application cannot therefore succeed. Final Orders 19.The Objector’s Application dated 28/08/2024 is accordingly dismissed with costs to the Petitioners. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026……………..……..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Mr. Melilei for the PetitionersMr. Wabomba h/b for Dr. Chebii for the Objector-ApplicantCourt Assistant: Brian Kimathi