https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9668

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAHURURU** **MISCELLANEOUS SUCCESSION CAUSE NO. E062 OF 2025** **JOHANA KIARIE BOGICHI…………………..…………….APPLICANT** **-VERSUS-** **JANE NJOKI alias JANE NJOKI GICHANE alias** **JANE NJOKI MUNGAI……………………………………RESPONDENT** **RULING** 1. By summons dated 28th November, 2025, the Applicant seeks orders thus; 2. ***Spent*** 3. ***That there be a stay of execution of the order/decree extracted from the ruling of the trial court delivered on 9th June, 2025 in Nyahururu Chief Magistrate’s Court Succ. Cause No. 26 of 2016 in the matter of the Estate of Gabriel Mwangi Minyote (Deceased).*** 4. ***That the honourable court be pleased to review the lower court ruling setting it aside and/or vacating it.*** 5. ***That there be an order that the application for revocation of grant be heard afresh by way of viva voce evidence and the Applicant be allowed to file supplementary affidavit for the ends of substantive justice.*** 6. ***That costs be provided for.*** 7. The application is premised on grounds that there is an error on the face of the record in the Ruling of the trial court delivered on 9th June, 2025 in ***Nyahururu Succession Cause No. 26 of 2016; In the matter of Estate of Gabriel Mwangi Minyote (Deceased);*** there is a discovery of new matter or evidence not disclosed or available before the trial court that would have led to a different ruling altogether. 8. That the Respondent ignored citation proceedings to take out a grant. 9. That there was no valid objection proceedings filed after 21 days of the publication of the advertisement or the cause in the Kenya Gazette. There was no affidavit of protest against the confirmation of grant. 10. That the Respondent had sought revocation of a certificate of confirmation of grant issued on 17th September, 2018, as per the Ruling which is inept and incompetent. 11. Further, that the Applicant was inadequately represented in the trial court and his evidence was not annexed regarding the marriage filed leading to a miscarriage of justice and there is need for the Respondent to prove that she was a spouse or the first wife of the deceased or she was a dependant or she contributed in acquiring the property Title No. Laikipia/Kinamba Block 2/238(Mwenje) acquired during the marriage of Miriam Wanjiku Kiarie (Deceased). 12. The application is also supported by an affidavit deposed by the Applicant who depones that on or about 1990 his daughter Miriam Wanjiku eloped and later married Gabriel Mwangi Kamau alias Gabriel Mwangi Minyote under the Kikuyu Customary Law and later acquired Title No. Laikipia/Kinamba Block 1/238 (Mwenje) where they lived for 23 years until her demise. 13. That almost a year later when Gabriel died that is when the Respondent appeared and moved to stay at the matrimonial home of Miriam Wanjiku Kiarie Title No. Laikipia/Kinamba Block 1/238 (Mwenje) and she also took over household goods; utensils and personal items of Miriam without colour of right. 14. That as a father in-law of Gabriel, he was never introduced to a wife of the deceased or even the alleged children. That on his death bed Gabriel confessed to him that he had no other wife, father or mother and handed over a copy of the title deed for the said land to pursue as part of the dowry for his daughter. 15. He cast doubt on the issue of the Respondent having established their matrimonial home on the subject parcel of land. That the Respondent never attended the burial of the mother of the deceased hence the requirement of proof that she was a spouse, and paternity of her children. 16. The Applicant further urged that he filed succession cause in his capacity as the father in-law to the deceased procedurally and legally under the **Amended Law of Succession Act 2021** as follows; 17. ***By issuing a citation which was duly served upon the Respondent to take grant through the firm of M/s Gakuhi Chege & Co. Advocates which she ignored.*** 18. ***Issued a demand notice to the Respondent in the year 2015 in respect of the said take over of the said matrimonial home which she ignored.*** 19. ***There were no objection proceedings within (21) twenty one days upon the gazettment of the succession cause.*** 20. ***There was no affidavit of protest ever filed against the confirmation of grant.*** 21. ***That the confirmation of grant was fully administered and transmission done of the said parcel of land over 3 years when an application for revocation was filed.*** 22. ***The Respondent never attended burial of Miriam Wanjiku Kiarie (Deceased).*** 23. That the Respondent filed objection proceedings and summons for revocation in the trial court after inordinate and unexplained delay which was aimed at defeating justice. 24. That the Applicant instructed the firm of Maina P. Kairu Advocates to oppose the summons for revocation of grant but they only filed a replying affidavit without attaching any documents, or submissions for no apparent reason or excuse which made him lose the opportunity to prove that his daughter was married to the deceased. 25. Finally, he urged that the error apparent on record was; 26. ***There is no legal provision under the Probate and Administration Rule and/or the Law of Succession Act for Revocation of a certificate of confirmation of grant.*** 27. ***The Respondent in the trial court only sought for revocation of the grant issued on 17th September, 2018 (a certificate of grant) and not a grant issued on 20th December, 2017.*** 28. ***The trial court to revoke a grant dated 15th June, 2017, which was non-existence.*** 29. ***The court purported to cancel the transfer of the said parcel of land into the Applicant’s name which has been overtaken by the events.*** 30. ***That there was no prayer in the application before the trial court for cancellation of the transmission of the said parcel of land, registration and issuance of a title deed in the name of the Applicant or even a prayer for cancellation of the title deed in name of the Applicant and/or reinstatement of the title deed in name of the deceased yet the court made an Order No. 4 in the ruling.*** 31. ***The trial court usurped the power of the Environment and Land Court in dealing with said parcel of land because there is no succession powers donated to the court under the Probate and Administration Rule and/or the Law of Succession Act.*** 32. ***The trial court ordered that a new succession cause be filed in respect of the estate of the deceased which is practically impossible in terms of the Electronic Filing System and court orders are not made in vain.*** 33. ***The trial court condemned the Applicant to pay costs instead of allowing each party to bear own costs.*** 34. In response thereto, the Respondent Jane Njoki alias Jane Njoki Gichane filed a replying affidavit where she deposed that she is the lawful widow of the deceased and biological mother of his children including Joel Kamau Mwangi whose birth certificate was annexed; which makes her directly and beneficially interested in the estate. 35. That she applied and was issued with the death certificate of the deceased on 25th November, 2015 and she surrendered the deceased’s original identity card to the Registrar of Births and Deaths as required by the law. 36. That the Applicant has not satisfied the three mandatory grounds statutory grounds for review, namely; 37. ***Discovery of new and important matter not within his knowledge despite due diligence.*** 38. ***Existence of an error apparent on the face of the record.*** 39. ***Any other sufficient reason recognized in law.*** 40. That the alleged new evidence including photographs, alleged dowry documents, correspondence, land records and purported proof of Customary Law Marriage were within the Applicant’s custody before hearing and determination of the matter and he deliberately opted not to produce them. 41. That the Applicant who had legal representation of two (2) advocates and swore multiple affidavits. Seeks to re-open/relitigate the matter because the outcome was unfavourable. 42. That the ruling of the court was based on viva voce evidence, documentary evidence and credibility assessment which is not renewable but appealable. 43. That the revoked grant was nullified and the property reverted to the estate. The photographs are dismissed as having no bearing to the deceased, hence not capable of meeting the threshold of new and important evidence under **Order 45 of the Civil Procedure Rules.** 44. The application was canvassed through written submissions. It is urged by the Applicant that the estate was fully administered therefore the court was functus officio and it had no jurisdiction to cancel a title deed which was a reserve of the Environment and Land Court. That the trial court revoked a non-existent grant issued on 15th June, 2017 without such prayer in the application and without due regard to **Section 76 of the Act.** That another order granted that was not sought was filing of a new succession cause by the Respondent notwithstanding the gazettement or the cause and the Estate being left without an administration. Urging that a certificate or grant cannot be revoked, reliance is placed on the case of ***Re-Estate of Africa Onyango Nande (Deceased) High Court of Kakamega Succ. No. 836 of 2013 (KLR).*** 45. On her part, the Respondent submits that claims that certain documents were omitted due to mistake of counsel is not the test for new evidence. That the test is whether the evidence existed at the time of trial; and, was unavailable despite due diligence; but all documents annexed availed before trial and were within the Appellant’s custody. 46. That the alleged ‘new evidence’ is legally infirm for the death certificate marked as JK-2 is incorrect as to the death of the deceased and bears alteration of the year, burial photographs do not identify the deceased as a son in-law and mere proximity of the deceased with an unspecified woman is not proof of marriage. 47. That the question of jurisdiction, effect of transmission and interpretation of **Section 76** are substantive legal question grounds of appeal and not review. 48. That the succession cause determined validity and restored the property to the Estate hence it was not functus officio; and, no explanation has been provided for the delay of five (5) months and nineteen days. 49. That the revocation order nullified the grant, factual findings cannot be re-opened under review and equity does not assist a party who approaches the court with unclean hands. 50. I have considered the application, response, affidavits in support and annexures thereto as well as rival submissions. 51. The power to entertain an application in respect of an Estate of a deceased person is entrenched in **Section 47 of the Law of Succession Act** which provides thus; ***The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:*** 1. The legal framework that governs probate matters is the **Law of Succession Act**. There are however some rules of the **Civil Procedure Rules** that are applicable. **Rule 63 of the Probate and Administrative Rules** provides thus; ***(1)Save as is 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 provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and 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 to proceedings under these Rules.*** ***(2)Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.*** 1. In ***John Mundia Njoroge & 9 Others v Cecilia Muthoni Njoroge & Another [2016]*** the court stated that; ***“As stated above, the only provisions of the Civil Procedure Rules imported to the Law of Succession Act are Orders dealing with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attending witnesses, affidavits, review and computation of time.*** ***Clearly, Order 45 relating to review is one of the Civil Procedure Rules imported into succession practice by rule 63 of the Probate and Administration Rules. An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review set out in Order 45 of the Civil Procedure Rules.”*** 1. The instant application is brought pursuant to **Order 45 of the Civil Procedure Rules that provide thus;** ***(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.*** ***2. To whom applications for review may be made [Order 45, rule 2]*** ***(1)An application for review of a decree or order of a court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree, or made the order sought to be reviewed.*** ***(2)If the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to that court at the time the application comes for hearing.*** 1. This is a matter that emanates from the subordinate court where a grant of letters of administration Intestate was revoked pursuant to provisions of **Section 76 of the Law of Succession Act** and as a consequence an order made cancelling the title that was issued. The ancillary order was made following the substantive order of the probate court. This was to pave way for filing a new succession cause. 2. This court has not been moved in its appellate jurisdiction. The Applicant is aggrieved and seeks review on the ground that there is new evidence which is important that should be tendered. It did exist but counsels on record did not present it, ideally he blames the advocate for professional negligence. The court is also faulted to have fallen into error in revoking the grant. 3. A similar matter was considered in ***Re-Estate of Otundo (Deceased) (Succession Cause 18 of 2022) [2025] KEHC 19584 (KLR)*** where the court stated that; ***“…it was clear from Order 45 of the Civil Procedure Rules that a court could only review its orders but not those of a court below or above it. If the Applicant was aggrieved by the orders of the Trial Court, she ought to have sought a review of the orders in the Trial Court for it to ascertain if she had demonstrated the three (3) grounds for seeking a review. The other alternative was for her to appeal the order of the Trial Court that disallowed the said Summons for Confirmation of Grant to this court. As what was before this court was not an appeal, it was evident that the Applicant had filed the present Chamber Summons application in the wrong forum and the same could not be sustained herein.”*** 1. In ***Kabansora Millers Ltd v Nyangena (Civil Appeal E665 of 2022) [2025] KEHC 4754 (KLR)*** the court stated that; ***“The law is well settled that a review is not intended to serve as an avenue for re-litigating matters that were, or ought to have been, addressed during the original hearing or on appeal. As affirmed in National Bank of Kenya Limited v Ndungu Njau and Stephen Gathua Kimani v Nancy Wanjira Waruingi (supra), an application for review must be founded on compelling circumstances such as the discovery of new evidence or an error apparent on the face of the record and not on mere dissatisfaction with the outcome of the decision.”*** 1. Of importance is the fact of what is provided by the rule of procedures. An aggrieved party is obligated to seek review from the court that granted the order. In the instant matter, it was the subordinate court. Even if the actual Magistrate may not have been available, there were other judicial officers of concurrent jurisdiction. 2. Filing the application in the instant court was a procedural error. In the result, the application is dismissed with costs to the Respondent. 3. It is so ordered. **Dated, signed and delivered virtually this 2nd day of July, 2026.** **……………………** **L.N. MUTENDE** **JUDGE**