https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10279

In re Estate of Chuma (Deceased) (Succession Cause 114 of 2014) [2026] KEHC 10279 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEHC 10279 (KLR) Republic of Kenya In the High Court at Kakamega Succession Cause 114 of 2014 S Mbungi, J July 8, 2026 Between Teddy Laban Kegode 1st Applicant Martin Mukunza Terah 2nd Applicant Suing as administrators ad litem of the Estate of Salome Nyangasi - Deceased and Francis Muzee Kirui 1st Respondent Christine Jelagat Chuma 2nd Respondent Ruling 1.The Notice of Motion before this Court is dated 18th November 2025 and is brought under Sections 3A and 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. 2.The Applicants principally seek orders that:i.The application be certified urgent.ii.There be a stay of the orders issued on 18th September 2025 pending hearing and determination of the application.iii.This Court reviews, varies and/or sets aside its ruling delivered on 18th September 2025 together with all consequential orders.iv.Pending determination of the application, the Respondents be restrained from selling, transferring, alienating, subdividing or otherwise dealing with land parcel Kakamega/Sergoit/100.v.Costs of the application. 3.The Motion is supported by the affidavits sworn by Collins Kigen Kipsang, and Teddy Laban Kegode. 4.The Respondents oppose the application through the Replying Affidavit sworn by Christine Jelagat Chuma together with written submissions. Applicants’ Case 5.The Applicants contend that although they duly filed their Application dated 9th August 2024 together with supporting affidavit and written submissions dated 19th February 2025, the Court inadvertently failed to consider the same before rendering the impugned ruling. 6.According to the Applicants, the matter came before Court on 20th February 2025 for purposes of confirming compliance with filing of submissions. The Court confirmed compliance and thereafter reserved the matter for ruling. The initial ruling date of 8th May 2025 was subsequently rescheduled to 18th September 2025. 7.Upon delivery of the ruling, the Applicants noted that paragraph 24 expressly stated that:‘At the time of writing this judgment the respondent had not filed their submissions’ the time of writing this judgment the respondent had not file 8.iIt is their contention that this statement was factually incorrect since the submissions had been filed, served and formed part of the court record. 9.Following delivery of the ruling, counsel perused both the CTS record and the physical court file and confirmed that the submissions had indeed been filed and were physically on record. 10.The Applicants therefore argue that the Court rendered its decision without considering their application, supporting affidavit and written submissions, thereby occasioning an error apparent on the face of the record warranting review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 11.They further submit that had the Court considered their submissions, it would have reached a different conclusion on the issues of jurisdiction and res judicata. Respondents’ Case 12.The Respondents oppose the application on the grounds that the Applicants have failed to satisfy the threshold for review. 13.They argue that the impugned ruling expressly considered the Application dated 9th August 2024 and therefore the Court cannot be said to have ignored it. 14.The Respondents further submit that the omission complained of does not amount to an error apparent on the face of the record but is instead an invitation for the Court to sit on appeal over its own decision. 15.They further contend that the Applicants failed to annex a formal extracted order or decree sought to be reviewed contrary to the provisions of Order 45 Rule 1. 16.It is also submitted that the prayer for injunction is already the subject of proceedings before the Environment and Land Court where status quo orders have already been issued, making the present prayer unnecessary and offending Section 6 of the Civil Procedure Act. Issues For Determination 17.Having considered the pleadings, affidavits and rival submissions, the Court is of the respectful view that the following issues arise for determination:a.Whether the Applicants have satisfied the legal threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.b.Whether the Applicants are entitled to the ancillary reliefs sought. Analysis And Determination a.Whether the Applicants have satisfied the legal threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 18.The jurisdiction of this Court to review its own decisions is donated by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 19.Order 45 Rule 1 limits review to three broad grounds, namely:i.discovery of new and important matter or evidence;ii.mistake or error apparent on the face of the record; oriii.any other sufficient reason, provided that the application is brought without unreasonable delay. 20.The Court of Appeal in National Bank of Kenya Ltd v Njau [1997] eKLR stated:“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.’ 21.Similarly, in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, the Court observed that an error apparent on the face of the record is one which is evident from the record itself and whose discovery does not require prolonged arguments or extensive reasoning. 22.The Supreme Court in Parliamentary Service Commission v Martin Nyaga Wambora & Others [2018] eKLR reiterated that review jurisdiction is intended to correct manifest errors and is not to be used as an avenue for rehearing matters on merit. 23.The distinction between review and appeal was succinctly captured by the Court of Appeal in Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR, where it was held that review is not intended to afford a party a second opportunity to argue its case but to correct manifest errors or omissions. 24.Applying those principles, this Court has carefully examined the impugned ruling. 25.Paragraph 24 expressly states:‘At the time of writing this judgment the respondent had not filed their submissions’ 26.The Applicants have exhibited: the CTS screenshots showing filing of submissions; the stamped copy of the submissions dated 19th February 2025; evidence that the matter came before Court on 20th February 2025 for confirmation of compliance before a ruling date was issued. 27.The Respondents have not disputed that those submissions were indeed filed, consequently, the factual statement contained in paragraph 24 is demonstrably inaccurate. 28.Where parties are directed to canvass an application by way of written submissions, those submissions become part of the record placed before the Court for consideration. Although written submissions do not constitute evidence, they remain an integral component of the parties’ legal arguments and aid the Court in determining contested issues. 29.The Court of Appeal in Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR observed that submissions cannot substitute pleadings or evidence. Equally, however, where a Court specifically directs parties to file submissions, it is expected that those submissions shall be considered before determination. 30.The present case goes beyond merely omitting to cite the Applicants’ authorities, the Court expressly proceeded on the factual premise that no submissions had been filed and the Applicants have demonstrated otherwise through documentary evidence. 31.This Court is therefore satisfied that the omission constitutes an error apparent on the face of the record. 32.A judicial determination must not only consider the pleadings but must also consider all material placed before it pursuant to its own directions. Once the Court specifically directed that the Preliminary Objection be disposed of through written submissions, fairness demanded that both parties’ submissions receive consideration before determination. 33.Article 50(1) of the Constitution guarantees every litigant the right to have disputes determined in a fair hearing. 34.Article 25(c) further recognizes the right to a fair trial as one of the rights that cannot be limited. 35.The Supreme Court in Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR underscored that observance of the right to fair hearing remains a cardinal constitutional obligation binding upon every court. 36.The Applicants have also persuaded this Court that the application for review was filed without unreasonable delay. 37.The ruling was delivered on 18th September 2025 whereas the present application was filed on 18th November 2025 after counsel had verified the contents of both the CTS record and physical court file. The explanation offered is reasonable in the circumstances. 38.Regarding the Respondents’ argument that no extracted order was annexed, this Court adopts a purposive approach. 39.Where the impugned ruling is annexed, clearly identified and the relief sought is unmistakable, failure to annex the extracted order should not automatically defeat a substantive application for review. 40.Article 159(2)(d) of the Constitution obligates courts to administer justice without undue regard to procedural technicalities. 41.The Court of Appeal in Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers [2016] eKLR reaffirmed that procedural rules are handmaids of justice and should facilitate rather than obstruct substantive adjudication. 42.Likewise, in Abdulrahman Abdi v Safi Petroleum Products Ltd & 6 Others [2011] eKLR, the Court emphasized that courts must weigh procedural lapses against the wider interests of substantive justice. a. Whether the Applicants are entitled to the ancillary reliefs sought 43.The Applicants also seek temporary injunctive orders restraining dealings over parcel Kakamega/Sergoit/100. 44.The Respondents have demonstrated, and the Applicants do not seriously dispute, that the Environment and Land Court has already issued status quo orders over the same property pending hearing of ELC Case No. E024 of 2024. 45.This Court is mindful of the need to avoid issuing parallel or conflicting orders over the same subject matter. Accordingly, no additional injunctive orders shall issue. 46.Equally, once the impugned ruling is reviewed and set aside, the prayer for stay becomes spent. 47.For the foregoing reasons, this Court finds merit in the Notice of Motion dated 18th November 2025. 48.Accordingly, the Court makes the following orders:i.The Notice of Motion dated 18th November 2025 is hereby allowed in part.ii.The Court finds that paragraph 24 of the ruling delivered on 18th September 2025 contains an error apparent on the face of the record in stating that the Applicants had not filed their written submissions.iii.Consequently, the ruling delivered on 18th September 2025, together with all consequential orders arising therefrom, is hereby reviewed and set aside.iv.The Preliminary Objection dated 11th October 2024 shall be reconsidered afresh on the basis of all pleadings, affidavits and written submissions already on record.v.Prayer No. 2 seeking temporary injunctive orders is declined in view of the subsisting status quo orders issued by the Environment and Land Court over the suit property.vi.Costs of the Notice of Motion dated 18th November 2025 shall abide the outcome of the Preliminary Objection.vii.Ruling on the Preliminary Objection is on 19.11.2026.viii.Right of Appeal 30 days explained.It is so ordered. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 8th DAY OF JULY, 2026.S.N MBUNGI.JUDGEIn the presence of:-CA: Zildah/VelmaMs Tum for the Respondent present online.Macharia Muturi for the Appellant absent online.