https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10362

In re Estate of Chesulut (Deceased) (Succession Cause E070 of 2021) [2026] KEHC 10362 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10362 (KLR) Republic of Kenya In the High Court at Nakuru Succession Cause E070 of 2021 JK Sergon, J July 9, 2026 IN THE MATTER OF THE ESTATE OF BENJAMIN KIBIWOT A. CHESULUT (DECEASED) Between Noah Kiprono Kericho 1st Administrator Peter Kiprotich Kericho 2nd Administrator Daniel Kiprotich Biwo 3rd Administrator and Mercy Chepkemoi Chesulut 1st Protestor Agness Chepkorir Chesulut 2nd Protestor Catherine Chepkoech Chesulut 3rd Protestor Ruling 1.Before this Court are two applications filed by the Administrators herein. The first is the Notice of Motion dated 15th December 2025 (hereinafter "the Review Application"), while the second is the Notice of Motion dated 9th February 2026 (hereinafter "the Rectification Application"). Both applications arise from the same succession proceedings and seek to challenge or correct the distribution of the estate of the late Benjamin Kibiwot A. Chesulut (Deceased). 2.The Deceased died intestate, and a grant of letters of administration was issued to the Applicants herein. The matter proceeded for hearing, and the Court delivered its Judgment on 30th May 2025 distributing the estate. Subsequently, the Protestors filed the applications dated 4th July 2025 and 11th July 2025 seeking review of the Judgment to include the parcel of land known as L.R No. Njoro/Ngata Block 2/5076 as part of the estate. This Court delivered its Ruling on 28th November 2025 (hereinafter "the Impugned Ruling") allowing the Protestors' applications in part and making additional distributions. 3.The Administrators, being dissatisfied with the Impugned Ruling, have now filed the two applications under consideration. 4.By a Notice of Motion dated 15th December 2025, brought under Sections 47 and 76 of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules, the Administrators seek for the following orders inter alia:a.That this Honourable Court be pleased to review its Ruling delivered on 28th November 2025.b.That the Honourable Court do order that Njoro/Ngata Block 2/5076 rightfully belongs to House 3, as the deceased built their home on it and they currently occupy it.c.That the Honourable Court do order that Njoro/Ngata Block 2/5246 rightfully belongs to House 1.d.That costs be in the cause. 5.The application is premised on the grounds set out on the face thereof and the facts deponed in the Supporting Affidavit of Noah Kiprono Kericho, the 1st Administrator herein. 6.The Applicants' case is premised on the following grounds; First, that the Ruling delivered on 28th November 2025 was based on material non-disclosure, incomplete evidence, and misleading representations. Second, that the Advocate on record for the Administrators, despite being in possession of the Title Deed for Njoro/Ngata Block 2/5076, failed to supply it to the Court. Third, that Paragraph 8 of the Ruling states that Njoro/Ngata Block 2/5246 was disposed of, yet the property remains intact and it was allocated to house 1. Fourth, that Paragraph 15 of the Ruling acknowledges that House 3 received less acreage in the earlier distribution. Fifth, that House 3 has a long-standing occupation of Block 2/5076, where the Deceased himself constructed their home. Sixth, that the distribution be corrected to ensure fairness given that House 3 received the least acreage originally. And finally, that unless stay orders are granted, House 3 stands to suffer irreparable harm. 7.The Administrators further contend that the failure to place the Title Deed before the Court was purely professional negligence on the part of counsel, and that it is a settled principle of law that mistakes of an advocate should not be visited upon innocent litigants. 8.The application is opposed by the Protestors who filed the Replying Affidavit of Mercy Chepkemoi ChesuluT (1st Protestor) sworn on 9th January 2026 and the Replying Affidavit of Agness Chepkorir Chesulut (2nd Protestor) sworn on 23rd January 2026. 9.The Protestors raise the following objection; That there is no new evidence as the Title Deed was available and in the possession of the Advocate both at the time when the substantive cause was heard and when the first application for review was heard. That there is no error on the face of the record as the claim that the deceased built a home for House 3 on Block 2/5076 is disputed. 10.The 2nd Protestor states that House 3's home is on Njoro/Ngata Block 2/257, which was already distributed to them. That occupation does not confer ownership as none of the parties was entitled to the property of the estate until the estate was distributed. That an appeal is the proper remedy if the Administrators are dissatisfied, they ought to file an appeal, not seek review. 11.That the application is an abuse of court process as the Administrators have filed multiple applications. That the distribution was fair as the Court took the evidence of all the parties and distributed the estate pursuant to Section 40 of the Law of Succession Act. 12.And finally, that the Title Deed is not new evidence as the Administrators have admitted that their advocate failed to supply the court with the title deed. 13.By a Notice of Motion dated 9th February 2026, brought under Articles 40, 47 and 159 of the Constitution of Kenya, Sections 47 and 74 of the Law of Succession Act, and Rule 73 of the Probate and Administration Rules, the Administrators sought for the following orders inter alia:a.That this Honourable Court be pleased to rectify the Confirmed Grant dated 16th June 2025 so as to include NOAH KIPRONO KERICHO, the 1st Administrator, as a beneficiary in respect of Molo South/Keringet Block 2/244 (Kirobon).b.That this Honourable Court do take judicial notice that the acreage of Molo South/Keringet Block 2/244 (Kirobon) exists on the ground but does not correspond with what is reflected in the confirmed grant, in that House 2 occupies approximately fifteen acres, House 3 occupies more acreage on the ground than what is reflected in the grant and was thereby allocated less acreage than due, and House 1, to which the Applicant belongs, was allocated no acreage at all.c.That this Honourable Court be pleased to issue such further orders as may be necessary to correct the anomalies, give effect to the intention of the deceased and uphold substantive justice. 14.The application is supported by the Supporting Affidavit of Noah Kiprono Kericho sworn on even date. 15.The Administrators argue that the Confirmed Grant contains errors and omissions that can be corrected under Section 74 of the Law of Succession Act. First, there is omission of a beneficiary known as Noah Kiprono Kericho was not included as a beneficiary for Molo South/Keringet Block 2/244. 16.Second, there is acreage mismatch as the acreage on the ground does not match what is stated in the Grant. 17.Third, there is exploitation by the 1st Protester as the omission is being exploited to threaten and intimidate purchasers and occupants. 18.Fourth, there are constitutional violations as the threats and interference violate Article 40 and Article 47 of the Constitution. 19.The Protestors oppose the Rectification Application through the Replying Affidavits filed in opposition to the Review Application. They argue that this is not a rectification under Section 74 but a substantive challenge disguised as a correction. 20.They contend that the Administrators are forum-shopping and abusing the court process. They further argue that the non-inclusion of the applicant as a beneficiary is not an error which merits rectification under section 74, and that if the applicant was dissatisfied, he ought to file an appeal. 21.Having carefully considered the applications and the applicable law, this Court identifies the following issues for determination:i.Whether the Administrators have met the threshold for review under Order 45 of the Civil Procedure Rules.ii.Whether the Administrators have demonstrated an error apparent on the face of the record.iii.Whether there is discovery of new and important evidence that could not have been produced despite due diligence.iv.Whether the errors complained of are capable of rectification under Section 74 of the Law of Succession Act. 22.The legal framework for review is found in Order 45 Rule 1 of the Civil Procedure Rules, which provides:“Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)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 was 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." 23.In National Bank of Kenya Ltd v Ndungu Njau [1997] KECA 71 (KLR), the Court of Appeal held:“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 it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review." 24.The Court of Appeal further stated in the same case:“In the instant case, the matters in dispute had been fully canvassed before the Learned Judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the Respondent. If he had reached a wrong conclusion of the law, it could be a good ground for appeal but not review. An issue hotly contested cannot be reviewed by the same court which had adjudicated upon it." 25.This Court is mindful that review is not an appeal in disguise. As was held by the Court of Appeal in Pancras T. Swai v Kenya Breweries Limited [2014] eKLR, an erroneous conclusion of law or evidence is not a ground for review but may be a good ground for appeal. The Court in that case cited with approval the earlier decision in Francis Origo & another v Jacob Kumali Mugala, Civil Appeal No. 149 of 2001, where the Court stated:“Our parting shot is that an erroneous conclusion of law or evidence is not a ground for a review but may be a good ground for appeal. Once the appellants took the option of review rather than appeal they were proceeding in the wrong direction......... " 26.This principle was also affirmed in the case of Abasi Belinda v Frederick Kangwamu and another [1963] EA 557, where Bennett J held;“A point which may be a good ground of appeal may not be a good ground for an application for review and an erroneous view of evidence or of law is not a ground for review though it may be a good ground for appeal." 27.The Administrators contend that the Court was misled by the Advocate's failure to produce the Title Deed for Njoro/Ngata Block 2/5076, and that the Court was told that Njoro/Ngata Block 2/5246 was disposed of when it was not. 28.This Court has carefully examined the Impugned Ruling delivered on 28th November 2025. On Block 2/5076, the Protestors brought this property to the Court's attention through an official search. The Administrators responded and confirmed that the 3rd wife's house was constructed by the deceased on this land. The Court considered the Administrators' arguments and allocated 8 acres to the 3rd house and 8.50 acres to the 2nd and 4th houses. On Block 2/5246, the Administrators themselves stated in their Replying Affidavit that the property was a plot measuring 50ft by 100ft allocated to the 1st house and already disposed off. 29.This Court finds that there is no error apparent on the face of the record. The Administrators cannot claim that the Court was misled by information that they themselves provided. The Court considered the evidence before it and made a decision based on that evidence. 30.The Administrators' complaint that the Title Deed was not produced is also not an error by the Court. The Administrators were represented by counsel throughout the proceedings. The failure to produce the Title Deed was not an error by the Court but by the Administrators' own counsel. 31.The Administrators claim that the Title Deed for Block 2/5076 constitutes new evidence. This Court disagrees. The Title Deed was in existence and in the possession of the Administrators' counsel at all material times. It was not discovered after the hearing. It was available but was not produced. Evidence that was available at the time of the hearing but was not produced does not constitute new evidence for purposes of review. Moreover, the Administrators have not demonstrated that the Title Deed could not have been produced despite due diligence. The failure to produce it was due to negligence, not due diligence. This Court cannot reward negligence by granting a review on the basis of "new" evidence that was always available. 32.This Court finds it significant that the Impugned Ruling already addressed the very concerns the Administrators now raise. On the concern that the 3rd house received less acreage, the Court expressly found this and allocated 8 acres from Block 2/5076 to the 3rd house. On the concern that the 3rd house has long-standing occupation of Block 2/5076, the Court noted the Administrators' confirmation of this and factored it into the decision. On the concern that Block 2/5246 was disposed of, the Administrators themselves provided this information to the Court. 33.The Administrators are essentially asking this Court to review its own Ruling to give the 3rd house more than the 8 acres already allocated. This is not a review; it is an attempt to get a better outcome after losing. This Court cannot allow that. As the Court of Appeal held in National Bank of Kenya Ltd v Ndungu Njau (supra):“It will not be a sufficient ground for review that another judge could have taken a different view of the matter." 34.The Administrators argue that the Advocate's negligence should not be visited upon innocent beneficiaries. This Court is not unmindful of this principle. However, a party is bound by the conduct of its advocate and if the advocate makes a mistake, the party must bear the consequences unless the Court in its discretion decides to relieve him of the consequences. 35.This Court notes that the Administrators have had multiple opportunities to present their case. They were represented by counsel throughout the proceedings. The substantive hearing took place, and the Court made its decision. The Administrators cannot now seek to reopen the matter simply because their counsel failed to produce evidence that was available. 36.Furthermore, the Administrators have not shown that the failure to produce the Title Deed resulted in an injustice. The Court made its decision based on Section 40 of the Law of Succession Act. The distribution was not based solely on the Title Deed. In fact, the Court already considered the Administrators' argument about the 3rd house's occupation and gave them 8 acres. 37.The Protestors have argued that the Administrators have filed multiple applications seeking different prayers but in respect of the same judgment and grant. The Administrators filed the Review Application on 15th December 2025 and the Rectification Application on 9th February 2026 while the Review Application was still pending. 38.This Court finds that while filing multiple applications on related matters is not, by itself, an abuse of process, it becomes an abuse when a party files applications that overlap or seek similar relief. In this case, the Review Application and the Rectification Application, while seeking different prayers, arise from the same dissatisfaction with the distribution. The Administrators are essentially trying to achieve the same goal through different legal routes. 39.Section 74 of the Law of Succession Act provides;“Errors in names and descriptions, or in setting out the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation, whether before or after confirmation , may be altered and amended accordingly." 40.In re Estate of Mbiyu Koinange (Deceased) [2014] KEHC 5672 (KLR), the Court held that rectification under Section 74 is limited to clerical errors, misdescriptions, or omissions in the grant. It is not meant to correct substantive errors or to reopen the distribution of the estate. 41.The Administrators seek to rectify the Confirmed Grant to include Noah Kiprono Kericho as a beneficiary in respect of Molo South/Keringet Block 2/244 and to correct acreage anomalies. This Court finds that these are not clerical errors or misdescriptions within the meaning of Section 74. They are substantive issues that go to the heart of the distribution of the estate. 42.The omission of an entire beneficiary from a parcel of land is not a mere clerical error. It would require the Court to determine whether the 1st Administrator was entitled to a share of the property, determine how much acreage each house should receive, and re-evaluate the evidence. This is precisely what Section 74 does not permit. The remedy for a party aggrieved by the distribution is to appeal the decision, not to seek rectification under Section 74. 43.For the reasons set out above, this Court makes the following orders:i.The Notice of Motion dated 15th December 2025 is hereby dismissed in its entirety.ii.The Notice of Motion dated 9th February 2026 is hereby dismissed in its entirety.iii.Costs of both applications are awarded to the Protestors. DATED AND DELIVERED AT NAKURU THIS 9TH DAY OF JULY, 2026J. K. SERGONJUDGEIn the presence of:Jamleck/Rutoh CANyabuto for 2nd and 3rd protestor