https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6834

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **FAMILY DIVISION** **SUCCESSION CAUSE NO. 562 OF 2019** **IN THE MATTER OF THE ESTATE OF MATHEWS LEMMY ADEMA (DECEASED)** **RULING** **INTRODUCTION** 1. *Vide* Notice of Motion dated 11th December 2025 and presented under Order 51 rule 1, Order 45 rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63 (e) of the Civil Procedure Act the applicant seeks the following orders- 1. The Honourable Court be pleased to review and set aside the judgment delivered on 28th November 2025. 2. The Grant of letters of administration intestate of the late Mathews Lemmy Adema issued on 28th November 2025, be revoked 3. The Deceased be exhumed, and a DNA test be performed between the deceased body and daughter Sharon Peon 4. Sharon be called as a witness in the matter 5. The costs of this application be provided for. 2. The application is based on the grounds on the face of the application and supported by the annexed affidavit of the applicant, sworn on 11th December 2025. The applicant seeks a review of the impugned judgment on the ground that there is an error on the face of the record. The error was that the Court erred in finding that she was not the wife of the deceased and that Sharon Paen was his daughter. It is further contended that the Court erred in denying the applicant’s request to call a witness, Mr Alfred Adema, and in not calling for a DNA test to establish the paternity of Sharon Paen. 3. Finally, the Court erred in not considering the submissions of the applicant which were on record. 4. The application was canvassed via written submissions. The applicant’s submissions are dated 1st April 2026. It is submitted that the applicant is entitled to a review on account of the error on the face of the record and reference made to the decisions in **Nyamogo & Nyamogo Advocates v Kago [2001] 2EA 173.** It is submitted further that the Court has broad discretion to review and reliance placed on the decision in **Official Receiver and Provisional Liquidator Nyayo Bus Service Corporation v Firestone EA (1969) Limited.** 5. The applicant faults the Court for denying her the opportunity to call a material witness and disregarding her submissions. It is submitted on the authority of the decision in **Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR** that this lapse by the Court compromised the applicant’s right to a fair hearing as guaranteed by the Constitution. 6. Further the Court erred in not directing for DNA tests to determine the paternity of Sharon Paen and reference made to the decision in **Wilfred Koinange Gathiomi v Joyce Wambui Mutura & Another [2016] eKLR.** 7. The respondent’s submissions are dated 7th April 2026. It is submitted that the application does not meet the legal threshold for an application for review on the basis of error on the face of the record as alleged by the applicant. Reference is made to the decision in **Re Estate of Julius Cheruiyot Ngeno (Deceased) (Succession Cause 3 of 2019) [2025] KEHC 572(KLR)** and **Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya [2019] eKLR.** 8. On the issue of the failure to call for DNA testing, it is submitted that in the circumstances of the case, it would have amounted to a violation of the right to privacy as held in **SWM v GMK ( Petition 235 of 2011)** and in any event in the current case, the Child had declined to take a DNA Test. **ANALYSIS AND DETERMINATION** 1. The issues for determination are; 2. **Whether the application dated 11th December 2025 is merited** 3. **Arising from (i) above what are the consequential orders?** 4. The applicants seek the review of the Judgment delivered on 28th November 2025, revocation of the Grant issued on 28th November 2025, and the exhumation of the body of the deceased to extract samples for DNA testing. 5. Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules provide as follows: **Section 80. Review** **Any person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.** **Order 45, rule 1. Application for review of decree or order.** **1.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 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.** 1. While Section 80 of the Civil Procedure Act grants the court the power to make orders for review, Order 45 sets out the jurisdiction and scope of review by confining review to discovery of new and important matters or evidence, mistake or error on the face of the record and any other sufficient reason. 2. The Court of Appeal had the following to say in an application for review in the case of **National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR).** **[16] 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.** 1. Further in **Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2 Others [2020] eKLR** the Court of Appeal held that: **It bears emphasizing that the phrase "mistake or error apparent" by its very connotation conveys the fact that the error envisaged is one which is evident per se from the record and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. It is prima-facie visible. It must relate to an error of inadvertence, one which strikes one on merely looking at record** 1. The **Supreme Court in Parliamentary Service Commission V Martin Nyaga Wambora & Others [2018] eKLR**, cited with approval the findings of the East Africa Court of Appeal in **Mbogo and Another v Shah [1968] EA**, on the issue of review as follows: - **[31]Consequently, drawing from the case law above, particularly Mbogo and Another v Shah, we lay down the following as guiding principles for application(s) for review of a decision of the Court made in exercise of discretion as follows: -** **i. A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a limited bench of this Court.** **ii. Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the Court.** **iii. An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application.** **iv. In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically.** **v. During such review application, in focus is the decision of the Court and not the merit of the substantive motion subject of the decision under review.** **vi. The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and:** **a. as a result, a wrong decision was arrived at; or** **b.it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice.** 1. In addition to the apparent mistake on the face of the record, the law allows for review on any other sufficient reason. In previous decisions, this ground has been interpreted to include instances where the applicant was wrongly deprived of an opportunity to be heard or where the impugned decision or order was procured illegally or by fraud or perjury: **see Serengeti Road Services -v- CRBD Bank Limited [2011] 2 EA 395**. Also, to be included as part of sufficient reason is where the impugned order if reviewed, would lead the court in promoting public interest and enhancing public confidence in the rule of law and the system of justice: see **Benjoh Amalgamated Limited v Kenya Commercial Bank Limited & another (Civil Appeal (Application) 40 of 2018) [2024] KECA 593 (KLR) (24 May 2024) (Ruling)** 2. The grounds on which the current application is presented do not fall within the parameters defined by law or established by judicial precedent. As the applicant is challenging the conclusion reached by the Court based on the evidence adduced before it (whether the applicant was married to the deceased, and whether the deceased was the father of the applicant’s child). 3. The application must fail. I therefore dismiss it. 4. The Summons for Confirmation of Grant dated 5th December 2025 will be mentioned before the Deputy Registrar on 3rd June 2026 for directions on its hearing 5. Each party will bear their own costs. 6. Parties at Liberty to file appeal, party exercising their right of appeal to do so within 30 days It is so ordered **DATED and DELIVERED VIRTUALLY at NAIROBI this 21st Day of May 2026.** **P. M NYAUNDI** **JUDGE** **In the Presence of** Fardosa Court Assistant Ojwok holding brief for Modi for Petitioners Mary Mbuva in person