https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12680

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **SUCCESSION CAUSE NO. 116 OF 2021** **IN THE MATTER OF THE ESTATE OF THE LATE JAMIN INYANDA KADAMBI ALIAS JAMIN INANDA (DECEASED)** **MARGARET MAKUNGU NDORI.......................................1ST PETITIONER** **BATROBA MIDEVA IRIANI........................ADMINISTRATOR/APPLICANT** **FLORENCE NGOSEYWE.................................................3RD PETITIONER** **Coram: Before Justice R. Nyakundi** **M/s Emily & Associates Advocates** **RULING** 1. What is pending before this Court for determination is Chamber Summons dated 9th July 2026 premised under Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules, Rule 63(1) and 73 of the Probate and Administration Rules and Sections 47 of the Law of Succession Act where the Applicant/Administrator is seeking the following orders: - 2. *That the error in paragraph 2 of the Supporting Affidavit of the Applicant filed in support of the Summons for Confirmation of Grant dated 02/02/2026 be corrected to read as follows, that the deceased was survived by the following* 3. *MARGARET MAKUNGU NDORI* 4. *BATROBA MIDEVA IRIANI* 5. *FLORENCE NGOSEYWE (now deceased).* 6. *That this Honourable Court be pleased to review and correct an inadvertent error the Supporting Affidavit dated 02/02/2026 in support of the Summons for Confirmation of Grant and the Ruling dated 28/05/26 by correcting all references to Margaret Makungu Ndori as 1st Petitioner deceased and replace such references with Florence Ngoseywe, the 3rd Petitioner deceased.* 7. *That this Honourable Court be pleased to review its Ruling dated 28/05/2026 in paragraph 15(d) to read that; “the 2nd Petitioner/Administrator shall within thirty (30) days from the date hereof file before this Court the Death Certificate of FLORENCE NGOSEYWE or such other satisfactory proof of death.”* 8. The Application is made on the following grounds on the face of it among others: - 9. *That the Administrator/Applicant filed Summons for Confirmation of Grant dated 2/2/26 wherein it was stated at paragraph 2 of her supporting affidavit, that the 1st Petitioner, MARGARET MAKUNGU NDORI is now deceased) died and that the whereabouts of the 3rd Petitioner, FLORENCE NGOSEYWE is unknown.* 10. *That the error arose out of inadvertent interchange of the identities of the two Petitioners. The correct position is that FLORENCE NGOSEYWE, the 3rd Petitioner is deceased while MARGARET MAKUNGU NDORI, the 1st Petitioner, is the one whose whereabouts are unknown.* 11. *That, as a result of the said errors, this Honourable Court relied on the erroneous averments and consequently adopted them in its Ruling.* 12. *That upon attending Court for the status conference to confirm compliance with the said Ruling, the Administrator's advocate discovered the error and now seeks to have it corrected.* 13. *That the mistake was inadvertent, arose from an error in the interchange of names but does not alter the principal position that Florence Ngoseywe is deceased and Margaret Makungu cannot be traced.* 14. *That the inadvertent mistake constitutes sufficient reason for this Honourable Court to invoke its inherent jurisdiction and review its Ruling dated 28/5/26 to correct the error.* 15. *That this Honourable Court has the jurisdiction and inherent power to grant the orders sought.* 16. The Application is supported by the annexed Affidavit sworn by Batroba Mideva Iriani, the Administrator/Applicant who deponed as follows: - 17. *That I am the 2nd Petitioner/Administrator herein with full knowledge of the facts of this case, thus competent to swear this Affidavit.* 18. *That this Honourable Court delivered its Ruling on 28/05/2026 in respect of the Summons for Confirmation of Grant dated 02/02/2026.* 19. *That in paragraph 2 of my Supporting Affidavit dated 2/2/2026 my advocate indicated that Margaret Makungu Ndori (now deceased). That there was an error as it is Florence Ngoseywe is the one who is deceased.* 20. *That my advocate has informed me and which information I believe to be true that the error was not intentional.* 21. *That my advocate has also informed me and which information I believe to be true that the same error is reflected in the Ruling of the Court delivered on 28th May 2026.* 22. *That my advocate has informed me that the said mistake was purely inadvertent and arose from an accidental interchange of the identities of the two Petitioners in the Supporting Affidavit and the same is sincerely regretted.* 23. *That I swear this affidavit to correct the error in paragraph 2 of my supporting Affidavit dated 2/2/2026 to read as follows that the deceased was survived by the following (a) MARGARET MAKUNGU NDORI (b) BATROBA MIDEVA IRIANI (c) FLORENCE NGOSEYWE (now deceased).* 24. The Application was unopposed. **Analysis and Determination** 1. I have read and considered the application and the supporting affidavit. There is only one (1) issue manifest for determination by this Honourable Court: - **Whether the Application for review is merited** 1. The jurisdiction of this Honourable Court to entertain the aforesaid application is provided for under Section 47 of the Law of Succession Act which provides as follows: - *47. Jurisdiction of High Court* *The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.* 1. This jurisdiction of this Honourable Court is supplemented by ***Rule 73 of the Probate and Administration Rules***, which preserves the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Accordingly, this Court is properly seized of jurisdiction to entertain the present application. 2. A review under Order 45 of the Civil Procedure Rules may be sought upon discovery of new and important matter or on account of some mistake or error apparent on the face of the record or for any sufficient reason. Rule 63 of the Probate and Administration Rules has in *pari materia* imported the provisions of the Civil Procedure Rules and the Civil Procedure Act. specifically, Order 45 Rule 1 of the Civil Procedure Rules sets down the criteria for review applications as follows: - 3. *Application for review of decree or order:* 4. *Any person considering himself aggrieved—* 5. *by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or* 6. *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.* 7. *A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate Court the case on which he applies for the review.* 8. The Honourable Courts have consistently interpreted the provisions of Order 45 Rule 1 of the Civil Procedure Rules. In *Republic Vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR,* the Court set out the principles to consider in the review of its own decisions. It was observed; 9. *A Court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.* 10. *The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.* 11. *An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.* 12. *An erroneous order/decision cannot be corrected in the guise of exercise of power of review.* 13. *A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a Superior Court.* 14. *While considering an Application for review, the Court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.* 15. *Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court/Tribunal earlier.* 16. *A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the Petitioner has not been able to point out any error apparent on the face of the record.* 17. *Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil Court and consequently by the appellate Courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the Court, but such limitations have been provided for in Order 45 Rule 1.* 18. *The power of a civil Court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1.* 19. The Court of Appeal in *Civil Appeal No. 2111 of 1996, National Bank of Kenya Vs Ndungu Njau,* remarked on review applications as follows: - *“… 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 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 proceeds on an incorrect expansion of the law.”* 1. In *Republic Vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR)* the Court considered the import of some mistake or error apparent on the face of the record as captured in Order 45 of the Civil Procedure Rules. It rendered itself thus: - *“… Review is impermissible without a glaring omission, evident mistake or similar ominous error. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by an order or review. The power of review is available only when there is an error apparent on the face of the record. I emphasize that review proceedings are not an appeal. The review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence or how the judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible.”* 1. The Applicant's case is founded on the contention that the Supporting Affidavit filed in support of the Summons for Confirmation of Grant inadvertently interchanged the identities of two Petitioners. According to the Applicant, the correct factual position is that Florence Ngoseywe, the third Petitioner, is the deceased Petitioner, while Margaret Makungu Ndori, the first Petitioner, is alive although her whereabouts remain unknown. The Court has carefully considered the Supporting Affidavit sworn on 2nd February 2026, the present application and the supporting affidavit sworn herein. 2. It is evident that the error complained of concerns the identity of the Petitioner described as deceased. The Applicant explains that the mistake arose from an accidental interchange of names by Counsel while preparing the Supporting Affidavit. There is nothing before this Court suggesting that the Applicant deliberately intended to mislead the Court. On the contrary, the Applicant candidly admits the mistake and has moved the Court promptly after its discovery. 3. The law has consistently recognized that genuine mistakes by Counsel or parties should not automatically be visited upon litigants where the interests of justice require correction, provided no prejudice is occasioned to the opposite party. More importantly, the mistake complained of is readily ascertainable from the record and does not require extensive evidentiary investigation. It concerns the description of a party and consequently constitutes an error apparent on the face of the record capable of correction through review. 4. It is equally noteworthy that the correction sought does not alter the Court's substantive findings regarding confirmation of the grant, nor does it vary the mode of distribution of the estate. The application merely seeks to align the Court's record with the true factual position regarding the identity of the deceased Petitioner. The Court is therefore satisfied that the Applicant has demonstrated sufficient reason within the meaning of Order 45 Rule 1 to warrant review of the Ruling. 5. Consequently, the Chamber Summons dated 9th July 2026 is merited and is hereby allowed. Accordingly, this Court makes the following orders: - 6. *Paragraph 2 of the Supporting Affidavit sworn on 2nd February 2026 in support of the Summons for Confirmation of Grant is hereby corrected to read that the deceased was survived by Margaret Makungu Ndori, Batroba Mideva Iriani and Florence Ngoseywe (now deceased).* 7. *The Ruling of this Court delivered on 28th May 2026 is hereby reviewed by deleting every reference describing Margaret Makungu Ndori as the deceased Petitioner and substituting the same with Florence Ngoseywe, being the Petitioner who is deceased.* 8. *Paragraph 15(d) of the said Ruling shall consequently read as follows: "The 2nd Petitioner/Administrator shall, within thirty (30) days from the date hereof, file before this Court the Death Certificate of Florence Ngoseywe or such other satisfactory proof of her death."* 9. *Save for the foregoing corrections, the Ruling delivered on 28th May 2026 shall remain in force in all other respects.* 10. *There shall be no order as to costs.* 11. Orders accordingly. **DATED, SIGNED AND DELIVERED AT VIHIGA THIS 6TH DAY OF AUGUST 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **R. NYAKUNDI** **JUDGE**