https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9619

In re Estate of Reith Alias Josef Konrad Beith (Deceased) (Probate & Administration E025 of 2024) [2026] KEHC 9619 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 9619 (KLR) Republic of Kenya In the High Court at Kisumu Probate & Administration E025 of 2024 JM Omido, J June 18, 2026 IN THE MATTER OF THE ESTATE OF JOSEF KONRAD REITH alias JOSEF KONRAD BEITH alias JOSEF REITH RITZ (DECEASED) Between Cassey Mandela Reith Petitioner and Ruth O. Opoti 1st Objector Kent J.O. Libiso 2nd Objector Ruling A. Background. 1.On 25th September, 2025, I rendered a ruling on the Objectors’ summons for revocation of grant dated 23rd January, 2025 that sought, inter alia, revocation of the grant of letters of administration intestate issued to the Petitioner and confirmed on 27th December, 2024, nullification of all consequential steps and the citation of the Petitioner for alleged perjury on account of alleged concealment of material facts, particularly the existence of Kisumu High Court Succession Cause No. 251 of 2005 relating to the estate of one of the co-registered proprietors of the suit property, LR No. Kisumu/Municipality Block 12/195. 2.The Objectors contended that they were administrators of the said estate and that their interest in the suit property had been unlawfully disregarded, thereby vitiating the grant for want of disclosure and breach of natural justice. 3.Upon consideration of the rival affidavits and submissions, the court identified the central issue as whether the Objectors had established any of the statutory grounds under Section 76 of the Law of Succession Act to warrant revocation of the grant. 4.In determining the matter, I found that the suit property had been registered in the joint names of the deceased and one Dorothy Mariamme under the regime of the Registered Land Act, and that, in the absence of evidence of tenancy in common, the doctrine of survivorship applied, with the result that upon the death of the said Dorothy Mariamme, her interest automatically accrued to the deceased and did not form part of her estate capable of administration by the Objectors. 5.I therefore held that the Objectors, being administrators of the estate of the said co-registered proprietor, had no subsisting legal interest in the estate of the deceased capable of grounding a summons for revocation under Section 76 of the Law of Succession Act. I proceeded to find that the application lacked merit and proceeded to dismiss it, with each party being directed to bear their own costs. B. The Application Dated 29th October, 2025. 6.Following the order dismissing the summons dated 23rd January, 2025, the Objectors have now brought the notice of motion dated 29th October, 2025, expressed to be brought under Sections 1A, 1B and 80 of the Civil Procedure Act, Order 45 and Order 51 Rule 1 of the Civil Procedure Rules Article 159(2) (d) of the Constitution of and all other enabling provisions of the law, seeking the following orders:1.[Spent].PARA 2.The Honourable Court be pleased to review and set aside its ruling delivered on 25th September, 2025 dismissing the Objectors’ summons for revocation of grant dated 23rd January, 2025 and substitute the same with an order allowing the said summons for revocation of grant.3.Costs of the application to be in the cause. 7.The grounds upon which the motion is premised have been set out on its face. The Objectors contend that following the delivery of the ruling dated 25th September, 2025 dismissing their summons for revocation of grant, they subsequently obtained a certified copy of the transfer of lease relating to LR No. Kisumu/Municipality Block 12/195. 8.They state that whereas the Court had proceeded on the basis that the nature of ownership of the suit property was a joint tenancy, the said newly obtained document discloses that the property was in fact held as a tenancy in common, thereby altering the legal position on transmission upon the death of one co-owner. 9.It is further the Objectors’ case that at the time the ruling was delivered, they were not in possession of the transfer of lease which expressly indicated the nature of the co-ownership. They therefore contend that the said document constitutes new and material evidence which, if placed before the Court, would have led to a different conclusion on their interest in the estate of the deceased. 10.On that basis, they argue that they have demonstrated sufficient grounds to warrant review and setting aside of the ruling delivered on 25th September, 2025, and the consequent reinstatement and allowance of their summons for revocation of grant under Section 76 of the Law of Succession Act. C. The Objectors’ Supporting Affidavit. 11.The application is supported by the affidavit of Ruth O. Opoti sworn on 29th October, 2025. The deponent deposes that she is one of the administrators of the estate of Dorothy Marriame Opoti, whose estate is said to have an interest in the property L.R. No. Kisumu/Municipality Block 12/195, and that she is also duly authorised by her co-objector, Kent J. O. Libiso, to swear the affidavit on his behalf. 12.She avers that she is aware that this matter is scheduled for hearing of the Petitioner’s summons for rectification of grant dated 9th October, 2025, and that the Court previously delivered its ruling on 25th September, 2025 dismissing the Objectors’ summons for revocation of grant dated 23rd January, 2025, a copy of which is annexed and marked “ROO 1”. 13.The deponent further deposes that in that ruling, the Court held that the suit property was held in joint tenancy, and consequently that the interest of the said Dorothy Marriame had accrued to the surviving co-owner, thereby negating any interest of the Objectors in the estate of the deceased. 14.The deponent further states that, subsequent to the ruling, she requested for and obtained a certified copy of the transfer of lease vide a letter dated 24th October, 2025 (annexture “ROO 2”) and that she paid the requisite fees on 28th October, 2025, as evidenced by a receipt annexed as “ROO 3”, following system downtime on 27th October, 2025. 15.She avers that upon receipt of the certified transfer of lease and consent to transfer, (collectively marked “ROO 4”), she discovered that the suit property was in fact held in tenancy in common, thereby altering the legal consequences of transmission upon the death of her sister, the said Dorothy Marriame. 16.It is the deponent’s further position, on advice of her Counsel, that by virtue of the tenancy in common, the share of the deceased co-owner did not accrue to the surviving proprietor but formed part of her estate, which in turn devolved upon the Objectors as administrators. 17.The deponent avers that at the time the ruling of 25th September, 2025 was delivered, the Objectors were not in possession of the said transfer of lease which expressly indicated the nature of ownership. She therefore contends that the newly discovered evidence establishes their interest in the suit property and demonstrates sufficient grounds to warrant review and setting aside of the said ruling, and reinstatement of the summons for revocation of grant. 18.She further asserts that the application is made in good faith, is in the interest of justice, and seeks to enable the Objectors to challenge the Petitioner’s alleged claim to the estate of the deceased. D. The Petitioner’s Replying Affidavit. 19.The application is resisted and to that end, the Petitioner Nelson Cassey Mandela Reith filed a replying affidavit that he swore on 17th November, 2025. In his affidavit the Petitioner deposes this Court has already pronounced itself on the question of ownership of LR No. Kisumu/Municipality Block 12/195 in its ruling delivered on 25th September, 2025, a copy of which is annexed and marked “ROO 1”, in which the Objectors’ summons for revocation of grant was dismissed. 20.The Petitioner further avers, on advice of his Counsel, that the alleged “new evidence” in the form of the transfer of lease and consent to transfer, annexed to the application and marked “ROO 4”, does not introduce any material change to the issue of ownership of the suit property, as the said documents are said to be silent on the question of proprietorship and merely mirror the position already considered by the Court. 21.He contends that the Objectors had sufficient opportunity to obtain and rely on the said documents during the earlier proceedings and are now improperly attempting to re-litigate issues already determined. 22.It is the Petitioner’s further position that the application is an abuse of the court process and is intended to delay the conclusion of the matter, the Objectors having failed in their earlier attempt to establish any interest in the estate of the deceased. 23.He maintains that the Objectors have not demonstrated any nexus to the estate of the late Joseph Konrad Reith and that their claim remains unsubstantiated by evidence. 24.The Petitioner further avers, on advice of Counsel, that the application is fatally defective for failure to comply with procedural requirements governing review applications, particularly the failure to annex the formal decree or order sought to be reviewed. He therefore contends that the application is incompetent, lacks merit and amounts to an attempt to improperly reopen concluded litigation, urging that it be struck out and/or dismissed with costs. E. The Objectors’ Further Supporting Affidavit. 25.The Objectors filed a further supporting affidavit (ideally a further affidavit) sworn on 19th January, 2026 by Ms. Opoti, in support of the application. The deponent, in response to the Petitioner’s replying affidavit, deposes that the newly obtained transfer of lease clearly indicates that the suit property is held as a tenancy in common, pointing to what she describes as an asterisked notation, and therefore disputes the Petitioner’s contention that the said document is silent on the nature of ownership. 26.She contends that the said document confirms that the interest of the late Dorothy Marriame did not accrue to the surviving co-owner, and that the Petitioner’s position is therefore misleading and intended to misdirect the Court. 27.The deponent further reiterates that the intended review of the ruling delivered on 25th September, 2025 would enable the Objectors to demonstrate that the Petitioner is not a beneficiary of the estate of the late Joseph Konrad Reith as alleged, and that the grant issued in his favour was therefore improperly confirmed. 28.In addition, she avers that the Objectors’ advocates wrote a letter dated 28th November, 2025 requesting for a certified and duly sealed copy of the ruling and order arising therefrom, and that payment was duly made, but the same has not been supplied to date. A copy of the said letter together with the receipt is annexed and marked “ROO 1”. 29.The deponent further states that a copy of the ruling had already been annexed to the earlier supporting affidavit, and therefore maintains that the Petitioner’s objection regarding procedural compliance is unfounded and inconsequential. F. The Objectors’ Submissions. 30.In his brief oral submissions, Mr. Abaja, learned Counsel for the Objectors takes the position that the Objectors have demonstrated sufficient cause to warrant the review of the ruling delivered on 25th September, 2025. 31.Counsel submits that the Objectors only came into possession of the transfer of lease after delivery of the said ruling and that the same reveals that the suit property is held in tenancy in common, contrary to the Court’s earlier finding that the property was held in joint tenancy. 32.Learned Counsel further submits that the nature of the interest is evident from the said transfer of lease, particularly by reference to an asterisk therein, which, in his submission, denotes that the property is held in tenancy in common. 33.In support of this interpretation, Counsel relies on the Oxford Advanced Learner’s Dictionary definition of an asterisk as “the symbol (*) placed next to a particular word or phrase to make people notice it or to show that more information is given in another place,” contending that the asterisk in the impugned document sufficiently clarifies the nature of ownership as tenancy in common and thereby alters the legal conclusion reached in the impugned ruling. 34.Counsel accordingly urges the Court to find that the newly discovered document constitutes sufficient grounds for review and setting aside of the ruling and order of dismissal of the summons for revocation of grant dated 23rd January, 2025, and substitute the same with an order allowing the said summons. 35.In support of the application, he relies on the authorities of Shanzu Investments Ltd v Commissioner of Lands [1993] eKLR and George Gichuhi & 5 Others v Catholic University of Eastern Africa [2018] eKLR, submitting that they underscore the principle that where new and material evidence is discovered which could not with reasonable diligence have been obtained at the time of trial, the Court is entitled to review its decision in the interests of justice. G. The Petitioner’s Submissions. 36.In response, Ms. Ochieng, learned Counsel for the Petitioner submits that the alleged “new evidence” relied upon by the Objectors does not meet the legal threshold for review, as the same document – the transfer of lease – has always existed within the Lands Registry and was therefore available to the Objectors with reasonable diligence during the hearing of the original summons for revocation of grant. 37.Counsel contends that the Objectors have failed to demonstrate any sufficient cause or due diligence to justify the admission of the said document at this stage. 38.Learned Counsel further submits that the Objectors’ own correspondence requesting for the alleged new evidence is dated after delivery of the impugned ruling, thereby reinforcing the position that no diligence was exercised prior to the determination of the matter. 39.She further argues that the present application is, in substance, an attempt to invite the Court to sit on appeal over its own decision rather than a proper application for review, which is impermissible in law. 40.Counsel accordingly urges the Court to uphold the principle that litigation must come to an end and submits that the application is an abuse of the court process and ought to be dismissed with costs. 41.In support of her submissions, she relies on the decisions in Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR and Rose Kaiza v Angelo Mpanju Kaiza [2009] eKLR, citing the propositions therein that review jurisdiction is limited to discovery of new and important matter which, despite due diligence, was not within the Applicant’s knowledge at the time of the decree or order and that an application for review cannot be used as a disguised appeal or an opportunity to re-argue the case on its merits. 42.In rejoinder, Mr Abaja submits that the issue of new evidence is purely a matter of fact. He maintains that the Objectors only became aware of the contents of the transfer of lease after delivery of the ruling sought to be reviewed, and that the said document, on its proper interpretation, discloses that the suit property is held in tenancy in common. He therefore reiterates that the discovery of the said document satisfies the threshold for review and urges the Court to allow the application as prayed. H. Issues for Determination. 43.Having considered the application for review, the affidavits filed in support and in opposition thereto and the rival submissions of Counsel, and guided by the provisions of Section 80 of the Civil Procedure Act as read together with Order 45 Rule 1 of the Civil Procedure Rules, the issues that arise for determination are:a.Whether the Objectors have demonstrated the existence of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within their knowledge or could not be produced at the time when the ruling of 25th September, 2025 was delivered.b.Whether the Objectors have established any sufficient cause or other recognized ground warranting review of the said ruling within the meaning of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, including whether there exists any apparent error or mistake on the face of the record, or any other reason adequate to justify the exercise of the Court’s review jurisdiction.c.Consequential upon the foregoing, whether the ruling delivered on 25th September, 2025 ought to be reviewed, set aside, and substituted with an order allowing the Objectors’ summons for revocation of grant dated 23rd January, 2025, or whether the application is in substance an impermissible invitation to the Court to sit on appeal over its own decision and thereby an abuse of the review jurisdiction. I. Analysis and Findings. 44.The Court has re-evaluated the application for review within the framework of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. It is now well settled that the jurisdiction of the Court to review its own orders is a limited and exceptional one, designed to correct manifest errors or to consider new and important matter which, despite the exercise of due diligence, was not within the knowledge of the Applicant at the time the order was made. 45.In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal emphasized that:“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission… It will not be a 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 proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law.” 46.This principle underscores the distinction between review and appeal, the former being confined to self-evident errors or new facts, and the latter addressing erroneous conclusions of law. 47.In applying the first limb of Order 45, the Court considers whether the transfer of lease now relied upon constitutes “new and important matter” which could not, with due diligence, have been obtained at the time of the earlier proceedings. 48.The jurisprudence is clear that not every newly obtained document qualifies as new evidence. In Rose Kaiza v Angelo Mpanju Kaiza [2009] eKLR, the Court of Appeal held that:“It is not every new fact that will qualify for interference with the judgment or decree sought to be reviewed… One cannot use a review application as a basis for supplementing evidence or introducing new evidence.” 49.Similarly, in Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR, the Court of Appeal reiterated that:“Misconstruing a statute or other provision of law cannot be ground for review… If the Court has reached a wrong conclusion of law, it could be a good ground for appeal but not for review.” 50.Guided by these authorities, it is evident that the burden lies upon the Applicant to demonstrate not only novelty of the evidence but also due diligence in its procurement. 51.Applying these principles to the present case, the Court finds that the transfer of lease relied upon by the Objectors is a public document obtainable from the Lands Registry at all material times. There is no evidence that any effort was made to obtain it during the pendency of the original summons for revocation of grant, nor is there any satisfactory explanation why such inquiry was not undertaken. 52.The correspondence annexed demonstrates that the request for the document was made after delivery of the impugned ruling, thereby confirming a lack of prior diligence. In the premises, the Court finds that the Objectors have failed to satisfy the threshold under the first limb of Order 45 Rule 1. 53.The Court must next consider whether the application falls within the residual ground of “any other sufficient reason” under Order 45 and the discretion preserved by Section 80 of the Civil Procedure Act. 54.The Court of Appeal in Sardar Mohamed v Charan Singh Nand Singh & Another [1959] EA 793 affirmed that Section 80 confers a wide and unfettered discretion, while in Wangechi Kimita & Another v Mutahi Wakibiru [1986] KLR 977, the Court held that the phrase “any other sufficient reason” should be interpreted broadly and not rigidly confined to grounds ejusdem generis with the other specified grounds. 55.In the present matter, the Court is alive to the principle that review jurisdiction ought not to be used as a disguised appeal. However, the Court is equally enjoined to ensure that justice is not sacrificed at the altar of procedural finality. Without a doubt, an erroneous conclusion of law or evidence is not a ground for review but may be a good ground for appeal. However, the Court further recognizes that the overarching objective of the “sufficient reason” limb is to prevent miscarriage of justice in appropriate cases. 56.In the present case, in determining whether “other sufficient reason” has been established to justify review, it is necessary to closely examine the document upon which the Objectors place reliance. 57.The material portion of the transfer of lease, which has been annexed and marked as “ROO 4”, is in the following terms (note the position of the asterisk):“The Transferees declare that they hold the leasehold interest as joint proprietors/as proprietors in common* in the following undivided shares” 58.The Court observes that the portion of the document designated for the specification of the undivided shares is left unfilled. 59.It is further observed that at the bottom of annexture “ROO 4”, the note corresponding to the asterisk above is set out as follows:“Delete whichever is not applicable.” 60.My understanding of the positioning of the asterisk and the corresponding note at the bottom is that the document was deliberately structured to require an election between two mutually exclusive forms of co-ownership, namely joint proprietorship or proprietorship in common, with the asterisk serving to signal that only one of the two alternatives was to be retained while the other was to be deleted. 61.The presence of the instruction “*Delete whichever is not applicable” at the foot of the document reinforces this interpretation, as it clearly contemplates that the preparer of the instrument must actively strike out the inapplicable option so as to leave a clear and unambiguous expression of the parties’ intention. 62.Indeed, even adopting the definition of an asterisk relied upon by the Objectors in the Oxford Advanced Learner’s Dictionary as “the symbol (*) placed next to a particular word or phrase to make people notice it or to show that more information is given in another place,” the logical conclusion is that the “more information” is that contained in the note appearing at the bottom of the document, namely the instruction directing the deletion of the inapplicable option. 63.In that context, the failure to fill in the portion designated for the specification of undivided shares, coupled with the apparent absence of a clear deletion of either option, creates an ambiguity as to the precise nature of the proprietary interest intended to be created. 64.This is because proprietorship in common necessarily requires the definition of distinct undivided shares, whereas joint proprietorship does not. The structure of the form therefore places emphasis on clarity of election, and any omission in completing the relevant sections undermines the certainty ordinarily required in instruments of transfer affecting interests in land. 65.It therefore follows that the transfer of lease does not expressly disclose the nature of the proprietary interests (whether as joint proprietors or as proprietors in common), that were vide the instrument transmitted to Dorothy Mariamme and Josef Konrad Beith, with the effect that we then fall back to the ruling of 25th September, 2025, in which I reached the finding that the proper legal position in respect of interests in property where the instrument does not clearly specify whether the co-ownership is held as a joint tenancy or a tenancy in common, is that as articulated by the Court of Appeal in the case of Mukazitoni Josephine vs Attorney General of Kenya [2015] eKLR, where the court held that where the title document was silent as to the nature of interest held by the registered proprietors, such property was deemed to be under joint tenancy. 66.Sections 101 to 103 of the Registered Land Act (which repealed statute applies to the property subject of this matter, as explained in the said ruling) recognizes the principle of jus accrescendi or survivorship. 67.The Court therefore finds that annexture “ROO 4” does not expressly indicate whether the leasehold interest was transferred to the transferees as joint proprietors or as proprietors in common. 68.In the Court’s view, the Objectors’ contention that the asterisk denotes proprietorship in common simply because it appears immediately after the word “common” is misconceived. A plain reading of the document shows that the asterisk relates to both alternatives – “joint proprietors” and “proprietors in common” – and merely directs the reader to the note at the foot of the document requiring the deletion of the option that is not applicable. It cannot therefore be construed as an indication that the parties elected to hold the property as proprietors in common. 69.Having reached the conclusion that annexture “ROO 4” does not, upon its proper construction, disclose any tenancy in common or otherwise alter the legal character of the co-ownership previously found by the Court, it follows that the document does not introduce any material fact capable of undermining or displacing the reasoning contained in the ruling of 25th September, 2025. 70.The Objectors’ application therefore amounts to no more than an invitation to the Court to revisit and reconsider a conclusion already reached on substantially the same evidential footing. That, however, is not the purpose of the review jurisdiction. 71.In the premises, the Court is unable to find that the circumstances of this case disclose the residual ground of “any other sufficient reason” within the meaning of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 72.The document relied upon by the Objectors neither reveals a manifest error in the impugned ruling nor demonstrates any material fact that would justify a departure from the Court’s earlier findings. To accede to the invitation made by the Objectors would, in effect, require the Court to sit on appeal over its own decision, which is a course not sanctioned under the law governing review proceedings. J. Disposition and Orders. 73.Having found that the Objectors have failed to establish discovery of new and important matter that could not, with the exercise of due diligence, have been produced at the time of the impugned ruling, and having further found that no sufficient reason has been demonstrated to warrant the invocation of this Court’s review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, the notice of motion dated 29th October, 2025 is devoid of merit and is hereby dismissed. 74.As regards costs, the general principle under Section 27(1) of the Civil Procedure Act is that costs follow the event unless the Court, for good reason, orders otherwise. The Petitioner having successfully resisted the application, and there being no special circumstances justifying a departure from that principle, the Objectors shall bear the costs of the application, which I assess at Ksh.5,000/-. 75.This file is closed. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 18TH DAY OF JUNE, 2026.JOE M. OMIDOJUDGEFor the Petitioner: Ms. Mwilolo for Mr. Nyanga.For the Objectors: Mr. Abaja.Court Assistants: Mr. Ngoge & Mr. Juma.Mr. Abaja: I pray for leave to appeal.Court: A formal application for leave to appeal to be filed.JOE M. OMIDOJUDGE