https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7003

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT SUCCESSION CAUSE NO. 52 OF 2003** **IN THE MATTER OF THE ESTATE OF SAMUEL WAMITHI** **WANG’ONDU ALIAS GACHIGUA WANG’ONDU (DECEASED)** **RULING** 1. Before this Court are two applications for determination - a summons dated **3rd June 2021** and a summons dated **14th** **April 2022**. The two applications were canvassed together by way of written submissions. The Applicant filed the written submissions dated **5th December 2022** whilst the Respondents relied upon their written submissions dated **13th December 2022**. **BACKGROUND** 2. This succession cause relates to the estate of the late **GACHIGUA** **WANG’ONDU** (hereinafter ‘the Deceased’) who passed away on **13th February 1977**. 3. Following the demise of the Deceased a Grant of letters of Administration Intestate was on **15th November 2007** issued to **William Wamithi Wang’ondu** and **Esther Wangui Wamithi**. That Grant was duly confirmed on **3rd October 2019**. **(i) Summons dated 14th April 2022.** 4. The summons dated **14th April 2022** was filed by the Applicants **JAMES MUNYARI WANG’ONDU** and **JOHN NDIRITU WANG’ONDU** seeking the following orders:- **“1. THAT this Honourable Court be pleased to set aside and/or review the orders given on the 10th June 2021.** **2. THAT after reviewing and/or setting aside the said orders, the application dated 5th February 2026 be heard on its merits.** **3. THAT the costs of this application be provided for.”** 5. The application which was premised upon **Rule 63(1) and Rule 73 of the Probate and Administration Rules Section 159(2) of the Constitution of Kenya 2010** and all enabling provisions of the law was supported by the affidavit of even date sworn by the Applicants. 6. The Respondent **WILLIAM WAMITHI WANG’ONDU** opposed the application through the Replying Affidavit dated **24th May 2022**. 7. I have carefully considered the application before me, the reply filed thereto as well as the written submissions filed by both parties. 8. **Section 80** of the **Civil Procedure Act, Cap 21 Laws of Kenya** allows any party who considers themselves aggrieved by a ruling or judgment to file an application for review of the same. 9. **Order 45 (1)** of the **Civil Procedure Rules 2010** provides that:- **(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 review of judgment to the court which passed the decree or made the order without unreasonable delay.** 10. From the above provisions, it is clear that **Section 80** of the **Civil** **Procedure Act** grants to courts the power of Review while **Order 45** of the **Civil Procedures Rules 2010**, sets out the rules which govern applications for review as follows;- **“(a) The discovery of new and important matter or evidence which after the exercise of diligence, was not within the knowledge of the Applicant or could not be produced by him at the time when the Decree was passed or the Order made.** **(b) Evidence of some mistake or error apparent on the face of the record.** **(c) Any other sufficient reason and that the Application** **has to be made without unreasonable delay.”** 11. The first question to be considered is whether this application for review has been filed in a timely manner. The application seeks to review orders made on **10th June 2021**. The said application was filed in **April 2022** about **ten (10) months** **after** the orders had been made. No explanation has been given for this delay. In my view the application has not been filed in a timely manner. 12. The orders made on **10th June 2021**, provided as follows:- **“That** **William Wamithi to exercise his portion equal to 0.41 ha within 2 months.”** 13. The Applicant claims that the above orders were made in error as the Respondent was not entitled to any portion of the suit land being the property known as **RUGURU/GACHIKA/216**. The Applicants are therefore seeking review on the basis that there existed an error or mistake on the face of the record. 14. In cases where a party claims that there exists an error on the face of the record, that error must be self-evident and obvious one which does not require elaborate argument or interpretation. Minor or academic errors will not qualify. 15. In the case of **NYAMOGO & NYAMOGO ADVOCATES -VS- KAGO [2001 E.A** the Court of Appeal stated as follows:- **“……There is a real distinction between a mere** **erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error** **which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record, though another view was also possible. Mere error or wrong view is certainly no ground for review although it may be for an appeal.”** 16. A perusal of the record reveals that the orders of **10th June 2021** emanate from an application dated **18th August 2020**. This application of **18th August 2020** had been filed by the very same applicants and sought to have the judgment delivered on **3rd October** **2019** reviewed in order to provide for the distribution of **Ruguru/Gachika/216** to the beneficiaries clarifying the share due to **William Wamithi Wang’ondu**. 17. Further in their Supporting affidavit dated **18th August 2020** at **Paragraph 4**, the applicants herein indicated that they would be willing to accept **0.20** of a hectare each out of the said land and they proposed that the applicant take a bigger portion being **0.34** of a hectare. 18. By the orders of **10th June 2021**, the Court allowed the Applicants prayers. How then do they now come before the court claiming that the said orders were erroneous. 19. The record further indicates that on **10th June 2021** all parties were represented by Counsel and the order that the Respondent excise **0.41** hectares was entered by consent. No party objected to the order. 20. The Applicants have not claimed much less demonstrated that their advocate had instructions to oppose the orders being made. They have not filed a substantive application to set aside the consent orders made on **10th June 2021**. 21. In **Board of Trustees National Social Security Fund versus Michael Mwalo [2015] eKLR** the Court stated as follows: **“The judgement arose from a consent of the parties to** **the suit. The law pertaining to setting aside of consent judgments or consent orders has been clearly stated. A court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the policy of Court.” [Own emphasis]** 22. I find that the orders made on **10th June 2021** were made at the behest of the applicants themselves. They cannot now come to court seeking to set aside the very orders that they had asked for. I find that this present application is frivolous vexatious and amounts to an abuse of court process. The same is dismissed in its entirety and costs will be met by the Applicants. **(ii) Summons dated 3rd June 2021.** 23. By the summons dated **3rd June 2021**, the Applicant **ESTHER** **WANGUI WAMITHI** sought the following orders:- **“1. THAT the Honourable Court be pleased to review** **the Judgment delivered on 3rd October 2019 in respect of L. R. AGUTHI/MURUGURU/446 by deleting the wordings “………….on her behalf and in trust for the house of Susan Wanjiru and William Wamithi Wang’ondu in trust for his brothers in equal shares.** **2. THAT upon granting prayer one (1) above L.R. AGUTHI/MURUGURU/446 be shared by ESTHER WANGUI WAMITHI and JOHN WAMITHI WANG’ONDU in equal shares.** **3. THAT the Honourable Court be pleased to further review the Judgment delivered on 3/10/2019 in** **respect of L. R. RUGURU/GACHIKA/216 by deleting** **the wordings”……….. between the two houses as set in paragraph 36 here above.”** **4. THAT upon granting prayer three (3) above the subject land L. R. RUGURU/GACHIKA/216 be held in the name of William Wamithi Wang’ondu in trust of his brothers in equal shares after excising his share.** **5. THAT the costs of this application be provided for.”** 24. The Respondents opposed the application through the Replying affidavit dated **24th May 2022** sworn by **William Wamithi Wang’ondu**. 25. By this application of **3rd June 2021** the applicant seeks to review the judgment delivered on **3rd October 2019**. In that judgment the Court revoked both the Grant dated **15th December 2007** and the Certificate of Confirmation of Grant dated **15th February 2008**. In the same judgment the court went on to make the following orders:- **“(iv) A fresh Grant to issue in the joint names of William Wamithi Wang’ondu and Ester Wangui Wamithi;** **(v) Any titles issued and touching on parcel number** **Ruguru/Gachika/216 are hereby cancelled; and this title shall revert back to the estate of the deceased;** **(vi) Distribution of the Parcel No. Aguthi/Muruguru/446 remains the same; and is to be held in the names of Esther Wangui Wamithi on her own behalf and in trust for the house of Susan Wanjiru and William Wamithi Wangondu in trust for his brothers in equal shares; likewise distribution of parcel No. Ruguru/Gachika/216 its net shall also be distributed between the two houses as set out in paragraph 36 hereinabove;”** 26. Review as a process under Civil Law is imported into Succession proceedings through **Rule 63(1)** of the **Probate and** **Administration** **Rules** which provide as follows:- **“Save as in the Act or in these Rules otherwise provided, and subject to any order of the Court or a Registrar in any particular case for reasons to be recorded, the following provision of the Civil Procedure Rules, namely Order 5 Rule 2 to 34 , Orders 11, 16, 19, 26, 40,45 and 50 (Cap 21 Sub. Leg.), together with the** **High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.) shall apply so far as relevant proceedings under these Rules.”** 27. **Section 80** of the **Civil Procedure Act** states that: **“Any person who considers himself aggrieved -** 1. **by a decree or order from which an appeal is** **allowed by this Act, but from which no appeal has** **been preferred; or** 1. **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”.** 28. Under **Order 45** of the **Civil Procedure Rules**, review may only be permitted under the following circumstances: **a) Discovery of new and important matter of evidence** **which, after 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.** **b) Mistake or error apparent on the face of the record.** **c) Any other sufficient reason which may make the court to review its order.** 29. By this application it is sought to review the orders made on **3rd October 2019** on grounds that there has been discovery of new and important evidence being the letter dated **21st April 2008** (Annexture ‘**EWM’** to the Supporting Affidavit dated **3rd June 2021**). In that letter the 3rd, 4th, 5th and 6th Respondents indicated that they were no longer interested in receiving a share of the parcel of land known as **AGUTHI/MURUGURU/446**. 30. Regarding what constitute new and important evidence the Court of Appeal in the case of **ROSE KAIZA -vs- ANGELO MPANJU KAIZA [2009]** **KECA 442** stated as follows;- **“Applications on this ground must be treated with great caution and as required by r 4 (2) (b) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due** **diligence and that the existence of the evidence was not within** **his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made. [Own emphasis]** 31. Similarly, the **Court of Appeal** in **Tokesi Mambili and others v Simion Listanga (2004) eKLR** held:- **(i) In order to obtain a review an applications has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error** **apparent on the face of the record or for any other sufficient reason**. **(ii) Where the application is based on sufficient reason it is for the Court to exercise its discretion.”** 32. The Applicants must not only show that new evidence exists, it must be demonstrated that such evidence was not within their knowledge even after the exercise of due diligence. 33. In the case of **Paul Mwaniki v National Hospital Insurance Fund Board of Management [2020] eKLR** in addressing discovery of new and important evidence stated as follows:- **vii. Mere discovery of new or important matter or** **evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier. [emphasis my own]** 34. The Supreme Court in the case of **Mohamed Abdi Mahamud v** **Ahmed Abdullahi Mohamed & 3 others (2018) eKLR** set out the governing principles of allowing additional evidence as follows:- **“We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:** 1. **The additional evidence must be directly relevant to** **the matter before the court and be in the interest if** **justice;** 1. **It must be such that, if given, it would influence or** **impact upon the result of the verdict, although it need not be decisive;** 1. **It is shown that it could not have been obtained** **with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;** 1. **Where the additional evidence sought to be** **adduced removes any vagueness or doubt over** **the case and has a direct bearing on the main issue** **in the suit; (** 1. **The evidence must be credible in the sense that it is** **capable of belief;** 1. **………………..;** 2. **Whether a party would reasonably have been aware** **of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;** 1. **………………** 2. **…………………..** 3. **…………………..** 4. **The court will consider the proportionality and** **prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.” [Emphasis my own]** 35. Firstly this judgment was delivered on **October 2019**. The application for review is being made in **June 2021** some **twenty (20)** months after the delivery of the judgment. In my view this amounts to unreasonable delay. Secondly it is quite evident that the letter dated **21st April 2008** was written some eleven (11) years **BEFORE** delivery of the judgment of **3rd October 2019**. Surely with exercise of due diligence and given that the parties herein are all members of the same family the applicants would not have failed to have knowledge of the existence of said letter and its contents. Yet they did not bring up the letter to the court before the judgment was delivered. 36. The application herein basically seeks a redistribution of the estate which can only be achieved by way of a substantive application not through an application for review. The applicant has not persuaded the court that this letter was not within her knowledge at the time of prosecuting the summons which led to the judgment of **3rd October 2019**. 37. Therefore I find no merit in this application and the same is hereby dismissed. 38. Finally and in conclusion this Court makes the following orders;- **(1) The summons dated 14th April 2022 is hereby dismissed in its entirety.** **(2) Costs for that application will be met by the** **Applicant.** **(3) The Summons dated 3rd June 2021 is hereby** **dismissed in its entirety with no orders on costs.** **Dated in Nyeri this 22nd day of May 2026.** **………………………….** **MAUREEN A. ODERO** **JUDGE**