https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11814

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT EMBU** **CORAM: R. MWONGO, J.** **SUCCESSION CAUSE NO. E023 OF 2021** **IN THE MATTER OF THE ESTATE OF SIMON NJOGU KANAI (DECEASED)** **MARTIN MULWA MUKUKWI….....……………………………..…….………1ST APPLICANT** **CATHERINE MUTHONI MULWA………………………………..……….…..2ND APPLICANT** **JULIUS NYAGA MNTHUNGU………………………………..……..……..…3RD APPLICANT** **ESTHER THUBA……………………………………………..…………...……4TH APPLICANT** **ANTHONY DAVID MUREITHI…………………..………..…….……………..5TH APPLICANT** **SERENO CONSOLATA WANVORIA……………………..……………....…6TH APPLICANT** **JACINTA MARIGU NJAGI………………………………..……………......…7TH APPLICANT** **FREDRICK KIVUTI CHIRIAW…………………..………..…………….……..8TH APPLICANT** **-VERSUS-** **BETH MUTHONI KAMAU WAIYAKI…………….……..……………........1ST RESPONDENT** **ANN MURINGO KANAI……………………………………..……..………2ND RESPONDENT** **MARY WAMARWA KANAI…………………………………..…….………3RD RESPONDENT** **BETTY WANJIRU KANAI……………………………………..……..…….4TH RESPONDENT** **NANCY WAKABARI KANAI………………………………..…..…...…….5TH RESPONDENT** **EDWIN WACHIRA KANAI…………………………………..……...…...…6TH RESPONDENT** **JOHNATHAN KANAI NJOGU……………………………..…………..….7TH RESPONDENT** **GEORGE NJAI THARA…………………………….……..…………….…8TH RESPONDENT** **GRACE NJERI NJAI………………………………….…..……………..….9TH RESPONDENT** **EMALYNE WANJIRU NJAI……………………...…………..………..….10TH RESPONDENT** **SIMON KANAI NJAI…………………………………………..……....…..11TH RESPONDENT** **RULING** **The Application** 1. The applicants filed a notice of motion dated 13th March 2026, premised on the grounds set out on its face and in the supporting affidavit. They seek orders that: 1. Spent; 2. That the Honourable court do hereby rectify errors apparent on the face of the record of its Ruling issued on the 31st July 2024; 3. That the Honourable court do hereby rectify last order where it wrongly stated the costs for both applications be awarded to the Respondents instead that the costs for both applications be awarded to the Applicants; and 4. That this Honourable Court be pleased to review the Ruling delivered on 31st July 2024 and rectify the orders so as the Applicant can successfully extract the correct court orders. 2. The applicants refer to the ruling of the court delivered on 31st July 2024 through which the application dated 16th January 2024 seeking revocation of grant, and that of 16th April 2024 seeking review, were determined. They state that there is an error apparent on the face of the record, to the effect that the court awarded costs of the applications to the respondents instead of the applicants. Through the present application, they claim that it is in the interest of justice that this error be reviewed. **Replying Affidavit** 1. The respondents oppose the application terming it as frivolous, unmeritorious and an abuse of the court process. They state that the application dated 16th January 2024 was filed by the applicants, while the one dated 16th April 2024 was filed by the respondents and it was determined by consent of the parties. In that case, the applicants are not right to say that the court erred in awarding costs to the respondent. They stated that the issues raised in the application are issues that ought to be raised on appeal and not upon a review. **Parties’ Submissions on the application.** 1. The application was canvassed by way of written submissions. 2. In their submissions, the applicants submitted that whilst delivering the judgment, Njuguna J (as she then was) stated that the costs would be awarded to the applicants but in the written decision, it states that costs are awarded to the respondents. They relied on Order 45 Rule (1) of the Civil Procedure Rules and the cases of **Karanja v Murigi [2025] KECA 517 (KLR)** and **Moses Kipkolum Kogo v Nyamogo & Nyamogo Advocates [2000] KEHC 389 (KLR)**. They stated that the error is apparent from the oral pronouncement of the decision and the written one and that it can be corrected through the present application. They stated that their application meets the threshold for review since the delay is not inordinate. 3. The respondents relied on Section 80 of the Civil Procedure Act and Order 45 Rule (1) of the Civil Procedure Rules and the cases of **Koross (Legal personal representative of Elijah CA Koross) v Komen & 4 others [2015] KECA 906 (KLR)** and **Nyong’o & Others v Attorney General [2026] KECA 200 (KLR)**. They argued that the applicants waited 9 months to file the application herein yet the delay was unexplained. **Issue for Determination** 1. The issue for determination is whether or not the court should review its ruling delivered on 31st July 2024. **Analysis and Determination** 1. Review is provided for under Section 80 of the Civil Procedure Act as follows: “***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. Similarly, Order 45 Rule 1 of the Civil Procedure Rules provides: “(***1) 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***.” *[Emphasis added]* 1. There are only 3 factors for the court to consider when it is sought to review its findings. These are: “***a.*** ***That there has been 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*** ***b. That there has been some mistake or error apparent on the face of the record; or*** ***c. Any other sufficient reason***.” *(Emphasis added)* 1. The impugned ruling of the court, according to the applicants is that the costs should have been awarded to the applicants and not the respondents. In their submissions, they argued that the court, orally awarded costs to the applicant but in the written ruling, it awarded costs to the respondent. **Conclusions and Disposition** 1. In conclusion, there is clearly no new matter discovered or pointed out which the applicants did not know of at the time of the impugned ruling, which they now know. On the second limb, for the court to consider the alleged error on the face of the record, that would call for a detailed re-examination of the facts of the case and the findings in the ruling. It may further call for evidence as to what was allegedly stated in Court by the Judge *vis a vis* what was written, to make a determination. In light of the foregoing, the matter is more appropriate for appeal since it cannot meet the threshold for review. 2. In the circumstances, the application lacks merit and it is hereby dismissed. 3. Orders accordingly. **Delivered, dated and signed at Embu High Court this 29th day of July, 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **R. MWONGO** **JUDGE** **Delivered in the presence of:** 1. Ms. Mwaniki holding brief for N. Mbogo for Applicants 2. Mrs. Kariuki for Respondents 3. Francis Munyao - Court Assistant