https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11593

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **SUCCESSION CAUSE NO. 243 OF 1999** **IN THE MATTER OF THE ESTATE OF KIPKOSGEI ARAP MAINA ALIAS KIPKOSGEI KETER (DECEASED)** **JELAGAT TAPRANDICH ........................................ 1ST PETITIONER** **SABINA JEBORE INGOTE ................ 2ND PETITIONER/RESPONDENT** **DAVID MOSONIK .................................................. 3RD PETITIONER** **TABARNO KOSKEI .............................. 4TH PETITIONER/APPLICANT** **=VERSUS=** **CHERUIYOT KOSKEI ....................................................... OBJECTOR** **RULING** 1. The 2nd Petitioner has moved this Court vide a notice of Motion dated 9.4.26 seek the following orders; 1. Spent 2. This Honorable Court be pleased to Review and/or set aside the Orders of 17th February 2026 and dismiss the 4th Petitioner's application dated 24th December 2021 on account of lack of jurisdiction. 3. This Honorable Court be pleased to grant other such order(s) as it may deem fit. 4. The 4th Petitioner be condemned to pay costs of and incidental to this application. 2. The application is premised on 12 grounds and supported by the affidavit of Sabina Jebore Ingote the gist of which is that the Applicant and the 4th Petitioner agreed to sub-divide and share the Land Parcel No. Sergoit/Koiwoptuoi Block 7 (Sergoit) 70 into 2 portions of 14 acres and 4 acres respectively and executed a memorandum of understanding to that effect. 3. An application for the rectification of Grant based on the Memorandum was allowed and a Rectified Grant issued on 9th August 2021. 4. That the 2nd and 4th Petitioners moved the Court for the revocation of the Rectified Grant on account of having a lack of understanding when executing the memorandum on 23rd July 2021. 5. It is urged that the succession Court's Jurisdiction is limited to the distribution of the Estate and does not extend to private agreements on sharing land. 6. The Court is called upon to review its orders of 17th February 2026 and dismiss the application dated 24th December 2021 for lack of Jurisdiction. 7. In response, the 4th Petitioner in a replying affidavit avers that at the time of signing the memorandum, it was not explained to him that the document purported to transfer four (4) acres of his inheritance as payment of legal fees. 8. He denies ever entering into any written Client/Advocate Retainer agreement with Ms Ngala & Company Advocates in respect of legal fees payable by him. 9. It is urged that the Court subsequently set aside the orders formed on the amended certificate of Confirmation of Grant and directed that the application for rectification be heard afresh so that all parties could be accorded an opportunity to be heard on merits. 10. Both parties have filed written submissions which submissions I have considered at length. 11. This is an application for the review of the order of Court vide the ruling dated 17th February 2026 in which the Court directed that the Summons for rectification of grant dated 28th July 2021 be listed for hearing on priority together with an order of stay of implementation of the Amended Grant dated 9th August 2021. 1. From the arguments preferred in both the affidavit evidence and submissions by the parties, the parties address the merits of the Summons for rectification of grant dated 28th July 2021 yet the application before Court is for the review of this Court’s (Nyakundi J) directing the hearing of that summons. 2. Notably, the orders sought to be reviewed (orders of 17th February 2026) are indeed directory orders with the main trial orders requiring the hearing of the Summons dated 28th July 2021 are hosted in Ruling of Court (Nyakundi J) dated 20th June 2025. 3. The issue for determination is whether the applicant has achieved the threshold for the review of the impugned orders. 4. The review Jurisdiction is a narrow one. 5. The jurisdiction of this court to review its own orders is not inherent but statutory. Although succession proceedings are principally governed by the Law of Succession Act, Cap. 160 and the Probate and Administration Rules, the jurisdiction to review decisions made in succession causes is available by virtue of Rule 63 of the Probate and Administration Rules, which imports, inter alia, the provisions of Order 45 of the Civil Procedure Rules into succession proceedings. Consequently, the principles governing review under Order 45 apply with equal force in succession matters. 6. Order 45 Rule 1 of the Civil Procedure Rules provides that a person considering himself aggrieved by a decree or order from which no appeal has been preferred may apply for review on any of the following grounds: discovery of new and important matter or evidence which, despite the exercise of due diligence, was not within his knowledge or could not be produced at the time the order was made; the existence of a mistake or error apparent on the face of the record; or any other sufficient reason. The application must, in addition, be brought without unreasonable delay. 7. The scope of the review jurisdiction has been settled by judicial authority. In **National Bank of Kenya Ltd v Ndungu Njau,** the Court of Appeal emphatically 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. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter, nor can review be a ground for rehearing the case."*** 1. The Court further made it clear that a review cannot be used as a substitute for an appeal. Where a party contends that the court reached an erroneous conclusion in law or fact, or improperly exercised its jurisdiction, the proper remedy lies in an appeal and not in an application for review. That principle has consistently been reiterated by the superior courts, including in **Pancras T. Swai v Kenya Breweries Limited,** where the Court observed that review jurisdiction is a narrow jurisdiction intended only to correct obvious errors or consider matters that could not previously have been placed before the court despite due diligence. 2. Similarly, in **Francis Origo & Another v Jacob Kumali Mungala,** the Court held that an application for review cannot be founded upon arguments that merely challenge the correctness of the court's decision. Such grievances belong exclusively within the appellate jurisdiction. 3. These principles have been applied with equal force in succession proceedings. Rule 63 of the Probate and Administration Rules expressly imports Order 45 of the Civil Procedure Rules, thereby making review available in probate matters, subject to the same strict statutory conditions. A party seeking review in a succession cause must therefore satisfy the court that one or more of the prescribed grounds under Order 45 has been established. Mere dissatisfaction with the court's reasoning or conclusions is insufficient. 4. In the present matter, this Court, in its considered ruling dated **20th June 2025**, found merit in the Fourth Petitioner's application dated **24th December 2021**. The Court consequently stayed the orders made on **9th August 2021**, by which the Certificate of Confirmation of Grant issued on **4th July 2005** had been amended and directed that the Summons for Rectification of Grant dated **28th July 2021** be heard on its merits. Those orders were not made casually or inadvertently. They were the product of a fully reasoned ruling in which the Court considered the material before it. That ruling remains part of the court record. 5. The present application does not point to any discovery of new and important evidence that was unavailable despite due diligence. Neither has the applicant demonstrated any error apparent on the face of the record. No self-evident mistake has been identified which would warrant correction under the review jurisdiction. Equally, the applicant has not established any other sufficient reason within the meaning of Order 45 to justify reopening the Court's decision. 1. Instead, the gravamen of the application is that this Court allegedly lacked jurisdiction to entertain an application related to private agreements. In essence, the applicant is saying that the court reached an incorrect conclusion. Those are quintessential appellate complaints. Whether this Court correctly appreciated its jurisdiction, properly interpreted the law, or arrived at the right conclusion are matters that invite an appellate court to interrogate the legality and correctness of the impugned decision. They do not fall within the narrow confines of review jurisdiction. 2. To entertain those arguments under the guise of review would amount to this Court sitting on appeal over its own judgment, a course expressly prohibited by the law governing review. The review jurisdiction is intended to correct patent errors, not to afford an unsuccessful litigant a second opportunity to re-argue matters already determined or to persuade the Court to change its mind. 3. Having carefully considered the application against the statutory requirements of Order 45 of the Civil Procedure Rules and the applicable jurisprudence, I am not satisfied that the applicant has brought himself within any of the recognized grounds for review. The threshold established by law has not been met. 1. Accordingly, I find the application devoid of merit. The same is hereby **dismissed with costs to the respondents**. **DATED SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JULY 2026** **** **A.K. NDUNG’U** **JUDGE**