https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7442

In re Estate of James Kipketer Rono (Deceased) (Succession Cause 332 of 2015) [2026] KEHC 7442 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 7442 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 332 of 2015 RN Nyakundi, J May 29, 2026 IN THE MATTER OF THE ESTATE OF JAMES KIPKETER RONO – DECEASED Between Daniel Kipchumba Keter Petitioner and Benjamin Kiprotich Keter Objector Ruling 1.Before this Court for determination a Notice of Motion dated 25th February 2026, brought under Section 3A and Section 80 of the Civil Procedure Act (Cap 21), Order 45 Rule 1 of the Civil Procedure Rules, 2010, Rule 40 of the Probate and Administration Rules, in which the Applicant seeks the following orders:a.Spentb.That the Ruling of this Honorable Court delivered on 17th October 2023 in this matter be and is hereby reviewed, set aside and/or vacated forthwith on the grounds that it was made in the absence of critical supporting documents which were never filed in Court.c.That the Petitioner be directed to file the Summons for Confirmation of Grant and the Mode of Distribution/Consent document afresh, properly sworn and signed by all beneficiaries, and to serve the same upon all interested parties including the Objector.d.That pending the hearing and determination of this application, the Objector/Respondent, his agents, servants, employees or any person claiming through him be restrained from effecting any distribution, transfer, sale or alienation of any assets forming part of the estate of the late James Kipketer Rono (deceased).e.That costs be in the cause. 2.The application is premised on the grounds set out on its face and amplified in the Supporting Affidavit of Daniel Kipchumba Keter sworn on 25th February 2026. The grounds, in brief, are as follows:a.That the Ruling delivered on 17th October 2023 refers to and relies upon a Summons for Confirmation of Grant and a proposed Mode of Distribution dated 24th March 2023.b.That upon a diligent search and inquiry, it has been discovered that the said Summons for Confirmation of Grant was never filed in Court by the Petitioner's previous counsel.c.That similarly, the Mode of Distribution/Consent document allegedly bearing the signatures of the beneficiaries, and purportedly supporting the application for confirmation, was never filed in Court.d.That the absence of these critical documents on the Court file constitutes a fundamental irregularity that goes to the root of the proceedings and renders the Ruling of 17th October 2023 a nullity.e.That the failure to file the said documents has prejudiced the Petitioner and other beneficiaries, who were thereby denied the opportunity to scrutinize the proposed mode of distribution and to raise any objections thereto.f.That the Petitioner only became aware of the irregularity recently, upon attempting to verify the Court record in preparation for the distribution of the estate.g.That any distribution of the estate founded upon the defective Ruling would be irregular and would occasion irreparable harm to the Petitioner and to the other beneficiaries.h.That it is in the interests of justice, fairness and the proper administration of the estate that the Ruling be set aside and the matter be heard afresh upon all proper documents duly filed. 3.In opposition to the application, the Respondent filed a Replying Affidavit sworn on 8th March 2026. 4.The Respondent deposes that the Applicant, then represented by the firm of Kibou Tuwai & Co. Advocates, lodged a Summons for Confirmation of Grant dated 25th February 2023 on 27th February 2023; that the said summons was served upon the parties, and the 2nd and 3rd houses filed their respective proposals on the mode of distribution; that by an order dated 27th March 2023 this Court directed the County Surveyors for Nandi and Uasin Gishu Counties to undertake a panoramic survey of the estate for the purpose of identifying the deceased's properties and the occupation thereof; that the surveyors compiled and lodged a report which was consistent with the occupation of the estate on the ground; and that this Court thereafter delivered its Ruling outlining the mode of distribution of the estate. 5.The Respondent deposes further that the Applicant, being dissatisfied with the said Ruling, lodged a Notice of Appeal against the same to the Court of Appeal; that, having lodged an appeal, the instant application for review and setting aside amounts to an abuse of the process of the Court, as an appeal and a review of the same ruling cannot be pursued concurrently; that the Applicant ought to elect and pursue a single remedy rather than cherry-pick between the avenues open to him; that equity aids the vigilant and not the indolent, and the Applicant, having failed to follow up the matter with his advocates, slept on his rights; and that the application is unmeritorious, falls short of the threshold prescribed under Order 45 of the Civil Procedure Rules, 2010, and ought to be struck out with costs. Analysis and determination 6.I have carefully considered the Notice of Motion, the Supporting Affidavit and the annexures thereto, the Replying Affidavit filed in opposition, and such submissions as were placed before the Court, together with the law applicable thereto. 7.Having done so, three issues commend themselves for determination:a.Whether the application is competent and properly before the Court, having regard to the Respondent's contention that the Applicant has lodged an appeal against the impugned Ruling;b.Whether the Applicant has established a proper basis for the review and/or setting aside of the Ruling delivered on 17th October 2023; andc.What orders ought to issue, and as to costs. 8.The jurisdiction of this Court to review its own decisions is conferred by Section 80 of the Civil Procedure Act and is regulated by Order 45 Rule 1 of the Civil Procedure Rules. The said provisions permit a person aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred, or from which no appeal is allowed, to apply for a review to the Court that passed the decree or made the order, and confine the application to the grounds of the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced at the time; the existence of a mistake or error apparent on the face of the record; or any other sufficient reason. In every case the application must be made without unreasonable delay. 9.The principles governing review are well settled. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal emphasized that a review is not an appeal in disguise and that the power is not to be exercised to enable a party to re-open and re-argue the merits of a concluded matter. The Court stated 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...” 10.In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, the Court distilled, among others, the principles that a Court may review its decision only upon the grounds enumerated in Order 45 Rule 1; that an error which is not self-evident and which can be discovered only by a long process of reasoning is not an error apparent on the face of the record; and that an erroneous decision cannot be corrected in the guise of review, such a course being the province of an appeal. 11.As to what constitutes an error apparent on the face of the record, in Nyamogo & Nyamogo v Kogo [2001] EA 174 the Court observed that such an error is one that is so manifest and patent that it can be seen by one who merely runs and reads, and not one that has to be established by a long-drawn process of reasoning on points upon which there may conceivably be two opinions. 12.The application before me is not, however, confined to the statutory power of review. It is expressly anchored also on Section 3A of the Civil Procedure Act, which preserves the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of its process. It is well established that, quite apart from the power of review, a Court enjoys an inherent and residual jurisdiction to set aside its own orders where those orders are shown to be a nullity or to have been procured through a fundamental irregularity going to the very foundation of the proceedings. In the celebrated passage in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169, Lord Denning explained that where an act is void, it is in law a nullity, and that not only is it bad but every proceeding founded upon it is also bad and incurably bad, one cannot put something on nothing and expect it to stand. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court of Appeal affirmed that jurisdiction is everything, and that a Court which acts without jurisdiction acts in vain and must down its tools. 13.Because this is a succession cause, the foregoing principles fall to be applied against the statutory scheme governing the confirmation of grants. Under Rule 40 of the Probate and Administration Rules, an application for the confirmation of a grant is made by summons supported by affidavit, and it is upon such an application that the Court is moved to determine the manner in which the estate is to be distributed. Section 71(2) of the Law of Succession Act enjoins the Court not to proceed to confirm a grant until it is satisfied as to the respective identities and shares of all persons beneficially entitled to the estate. Where, as here, the deceased is said to have married under a system of law permitting polygamy, the distribution is further governed by Section 40 of the Law of Succession Act, which directs that the net intestate estate be divided, in the first instance, among the houses according to the number of children in each house. It follows that the confirmation of a grant, and the consequent determination of the mode of distribution, must rest upon a summons for confirmation and upon material, including any consent or proposed mode of distribution executed by the beneficiaries properly placed before, and forming part of, the record of the Court. 14.The human rights discourse on inheritance emphasizes the individual while customary law emphasizes a group or community within the definition of first degree consanguinity and affinity as routed within the letter and the spirit of Section 59 of the Law of Succession Act whereas customary law stresses on duties. Human rights regimes normally stresses on rights and customary law is imbued with the principles patriarchal which means that any freedoms of thought, speech, movement or association are qualified by the respect due to all senior men. 15.Although the inclusion of a specific right to culture in the Constitution 2010 is considered as a step forward in the democratization of our society it nevertheless creates other numerous problems for the existing body of customary law since as part of our sources of law, customary law must now be interpreted and evaluated in the light of the fundamental rights embodied in Chapter 4 of our Constitution on the Bill of Rights. This is of more fundamental importance particularly on inheritance laws which then must be read purposively with Article 27 of the Constitution on equality before the law and non-discrimination together with the UN Convention on all forms of discrimination against women which calls on all States to take all appropriate measures including legislation to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women or other members of the same family. 16.My appreciation of interpretation of fundamental rights in our constitutional framework on the face of it they are not arranged in any hierarchical order that is from more important to less important. As a consequence of this, the Constitution must be interpreted in such a way that if there is an infusion of customary law the fundamental rights takes the center stage of construing the rights as against customary law. Essentially, the interpretation of customary law must be such that the Courts must give effect so as to promote the spirit, purport and objects of the Bill of Rights. The Constitution establishes harmony on inheritance rights, first it establishes that the right to culture is subordinate to the right to equal treatment, irrespective of the fact that the law is obliged or mandated to respect African culture and tradition. It is also necessary to appreciate that Article 27(4) of the Constitution discrimination in any of the grounds listed therein is strictly prohibited, irrespective of whether the discrimination takes place within the family and is permissible under private law. Thus, rules of customary law can only be upheld when they are in accordance with the laws on equality under Article 27 of the Constitution and does not offend the principle of equal treatment of the same members of the family. 17.Briefly, the facts of this case from the affidavit evidence does demonstrate the exclusion of some members of the estate from the same lineage and no compelling and exceptional circumstances have been laid before this Court in support of exclusion to benefit from the rights to property in the intestate distribution as provided for under Article 35, 36, 37, 38, 39, 40 & 41 of the Laws of Succession Act. In order to advance the values enshrined in Article 10 of the Constitution, as read with Section 40 of the Constitution such clauses of exclusion of members who are legitimately identified under Section 29 of the Law of Succession Act to benefit from the distribution model arising from the deceased’s estate is both a violation of the Constitution and Law of Succession Act. It must be emphasized that in view of exclusion of certain class of members of the same family the certificate of confirmation of grant now in operation must be stayed as a basic structure to distribute the estate of the deceased to pave way for an inclusive and participatory process for each member of the family survived of the deceased. 18.When an intestate estate is distributed in Kenya inclusivity in consent requires that all eligible dependants and beneficiaries are involved. If any beneficiary is excluded or coerced into consenting the Courts must exercise discretion judiciously to invalidate the distribution to ensure constitutional equity. This is one of the battleground issues between the Applicants and the Respondent as discussed elsewhere in this ruling. The Courts have spoken on these matters before as shown in the dicta in the following cases: In re Estate of Chepkurgat Cheptony (Deceased): The High Court affirmed that a mode of distribution agreed upon by a family must factor in all legal beneficiaries. It ruled that if a dependant’s share is duly accounted for through their respective parent's estate and agreed to by their mother, no concealment of material facts occurs, cementing the validity of the distribution. Court of Appeal Civil Appeal No. 4 of 2013: The Court of Appeal set aside a consent order regarding the distribution of an estate because the administrators failed to prove that the consent was fully explained or freely given. The court ruled that consent is invalidated by the concealment of material facts, meaning all beneficiaries must consciously agree. Stephen Gitonga M'Murithi vs. Faith Ngiramurithi (2015): Though dealing largely with statutory distribution, this case cemented the principle that sons and daughters have equal inheritance rights. Any family "consent" that attempts to allocate smaller or non-existent shares to female children violates the law and is consistently struck down by the courts. 19.The doctrine of inclusivity and participation in inheritance dictates that all rightful heirs particularly marginalized groups like women, children and vulnerable dependents must be actively included in proper distribution and given a choice in succession processes thus moving away from discriminatory, male dominated customary traditions. It take judicial notice that the drafters of the Law of Succession Act 1981saw it fit even before the dawn of the new Constitution that male and female children as well as spouses have equal rights to inherit family wealth overriding patriarchal customs. We are being told that some of the family members who are legal beneficiaries and have a legal right to inherit the estate were not properly informed or consulted during the discussion on the administration of the deceased’s estate. That is an error of fact and law in which combined with sufficient cause are worthy the judicial discretion of this Court to have the basic structure now in place certificate of confirmation of grant be interfered with so that every member and beneficiary legitimately falling within Section 29 of the Act have his or her views incorporated even though they might not carry the day in terms of the final judgment. Whether the application is competent in view of the alleged appeal 20.I turn first to the Respondent's threshold objection that, by lodging a Notice of Appeal against the impugned Ruling, the Applicant has rendered the present application an abuse of the process of the Court, an appeal and a review being mutually exclusive. I have given the contention consideration, but I am not persuaded by it, for the following reasons. 21.First, a Notice of Appeal is not the institution of an appeal. It is no more than an intimation of an intention to appeal. The appeal itself is preferred, and the appellate jurisdiction invoked, only upon the filing of the record of appeal within the prescribed time. Nothing has been placed before this Court to demonstrate that a competent appeal has in fact been instituted and is presently pending before the Court of Appeal. A bare notice of appeal, which may be deemed withdrawn or may lapse for want of prosecution, does not, without more, amount to an appeal having been preferred within the meaning of Section 80 of the Civil Procedure Act and Order 45 Rule 1(a) of the Civil Procedure Rules. 22.Secondly, a void order is not insulated from correction merely because a notice of appeal has been lodged against it; were the position otherwise, a party could perpetuate a fundamental irregularity simply by filing a notice of appeal. The setting aside of a void order is to be distinguished from a re-evaluation of the merits of a valid one. 23.Thirdly, the policy that underlies the prohibition against the concurrent pursuit of an appeal and a review namely, the avoidance of two Courts pronouncing simultaneously upon the merits of the same decision, with the attendant risk of conflicting outcomes has no application here. As will presently appear, the Applicant does not invite this Court to reconsider the correctness of its reasoning or its assessment of the evidence. He invites it, rather, to examine the integrity of its own record and to set aside an order said to have been founded upon documents that were never on that record. That is a wholly different enquiry from one which a Court of appeal would undertake. For these reasons, I hold that the application is competent and properly before the Court, and the Respondent's threshold objection is overruled. Whether the Applicant has established a basis for setting aside the Ruling of 17th October 2023 24.The Applicant's contest around the Ruling delivered on 17th October 2023, by which this Court confirmed the amended grant and approved the mode of distribution proposed by the 2nd and 3rd houses, was founded upon a Summons for Confirmation of Grant and a consent or mode of distribution document that were never in fact filed in, and do not form part of, the record of the Court. The Respondent, for his part, maintains that the summons was lodged on 27th February 2023. 25.Let me state that a Court is mandated, and indeed bound, to take cognizance of the state of its own record. Upon a perusal of the record in this cause, I am unable to trace either a Summons for Confirmation of Grant or a consent or mode of distribution document executed by the beneficiaries and answering to the proposed mode of distribution dated 24th March 2023 upon which the impugned Ruling is expressed to rest. 26.The record is self-evident upon a perusal of the file and does not call for any elaborate process of reasoning to expose. That is the hallmark of an error apparent on the face of the record, as understood in Nyamogo & Nyamogo v Kogo (supra). This is not a case in which the Applicant quarrels with the Court's appreciation of the evidence or the soundness of its reasoning, a complaint that would properly lie in appeal, but one in which the very materials said to support the decision are absent from the record. 27.In the second place, and more fundamentally, a confirmation of a grant and a determination of the mode of distribution that proceed in the absence of the summons by which alone the Court is properly moved under Rule 40 of the Probate and Administration Rules, and in the absence of the consent or proposed mode of distribution by reference to which the Court is to satisfy itself, under Section 71(2) of the Law of Succession Act, as to the identities and shares of all persons beneficially entitled, cannot be regarded as having been regularly made. 28.The confirmation of a grant in a polygamous intestacy, and the apportionment of the estate among the houses and their members under Section 40 of the Law of Succession Act, profoundly affects the proprietary rights of every beneficiary. Where the consent or proposed mode of distribution is not upon the record, the beneficiaries are denied the opportunity to scrutinize it and to be heard upon it before their interests are determined. The right to be heard before an adverse decision is taken is among the most cherished of the rules of natural justice. 29.I have not lost sight of the Respondent's contention that it was the Applicant's own former advocates who were charged with the filing of the documents, and that the Applicant, having slept on his rights, ought not now to be heard to complain. Two answers may be given. First, a litigant ought not ordinarily to be visited with the consequences of the omissions of his advocate, as the Court of Appeal observed in Philip Keipto Chemwolo & another v Augustine Kubede [1986] eKLR, where it was held that a mistake is a thing that occurs, and that a party should not, on account of his advocate's blunder, be shut out from having his matter determined on the merits. Secondly, and more importantly, the regularity of the record and the lawful administration of the estate are not matters of mere private concern to the Applicant; they engage the interests of all the beneficiaries and the integrity of the Court's own process, which it is the duty of the Court to safeguard irrespective of which party's omission may have given rise to the irregularity. 30.As to delay, the Ruling sought to be impeached was delivered on 17th October 2023 and the present application was filed on 25th February 2026. While that interval is considerable, the requirement that a review be sought without unreasonable delay must be applied with regard to the nature of the complaint. The defect here complained of is a latent one, not apparent upon the face of the Ruling itself but disclosed only upon a careful examination of the contents of the Court file, an examination which the Applicant deposes he undertook in preparation for the distribution of the estate, and upon which the irregularity came to light. A nullity, moreover, does not acquire validity through the mere passage of time, and may be impeached whenever it is sought to be relied upon. In these circumstances I am satisfied that the delay has been reasonably explained and is not, of itself, a bar to the relief sought. The present case is in this respect distinguishable from those in which an unexplained and inordinate delay has been held fatal. 31.Drawing these threads together, I am satisfied that this constitutes both an error apparent on the face of the record and an issue going to the root of the confirmation and the distribution; and that the justice of the case demands that the Ruling be set aside and the question of confirmation and distribution be determined afresh upon a complete and regular record, with all the beneficiaries afforded the opportunity to be heard. 32.For all these reasons, I find that the Applicant has established a proper basis for the setting aside of the Ruling delivered on 17th October 2023, and the second issue is answered in the affirmative. 33.Accordingly, the following orders shall abide:a.The Notice of Motion dated 25th February 2026 is hereby allowed.b.The Ruling of this Honorable Court delivered on 17th October 2023, together with the orders therein confirming and approving the mode of distribution of the estate proposed by the 2nd and 3rd houses dated 24th March 2023, is hereby reviewed, set aside and vacated.c.The Petitioner shall, within thirty (30) days of the date hereof, file a proper Summons for Confirmation of Grant supported by a consent or mode of distribution document duly executed by all the beneficiaries of the estate, and shall serve the same upon all interested parties, including the Respondent.d.Pending the hearing and determination of the Summons for Confirmation of Grant to be filed afresh, the parties, and each of them, together with their agents, servants, employees or any person claiming through them, are hereby restrained from effecting any distribution, transfer, sale, charge or other alienation of any of the assets forming part of the estate of the late James Kipketer Rono (deceased).e.The costs of this application shall be in the cause. 34.It is so ordered. DATED AND DELIVERED AT ELDORET THIS 29TH DAY OF MAY 2026.............................................R. NYAKUNDI JUDGE