https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7365

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **SUCCESSION CAUSE NO. 448 OF 2009** **IN THE MATTER OF THE ESTATE OF SARATUKI WAMBULULU (DECEASED)** **JOSEK SIMIYU PRICHANI (alias** **JOSECK SIMIYU SARATUKI-------------------------------------APPLICANT** **-VERSUS-** **WEPUKHULU SARATUKI--------------------------------------RESPONDENT** **-AND-** **SAMSON WANGILA PRICHANI---------------1ST INTERESTED PARTY** **ISAAC WEKESA PRICHANI----------------------2ND INTERSTED PARTY** **RULING** 1. By Notice of Motion, amended on 14th July 2025, the applicant seeks the following prayers, having invoked sections 76, 47 and 93 of the Law of Succession Act, section 80 of the Civil Procedure Act, and Oders 45, rule 1 and 51, rule 1 of the Civil Procedure Rules: 2. ***THAT this Honorable Court be pleased to review its judgment delivered on 3rd day of March 2020 with a view of setting it aside;*** 3. ***THAT this Honorable Court be pleased to find that Wepukhulu Saratuki; (now deceased) fraudulently obtained the grant in Kimilili Succession Cause No. 15 of 1970;*** 4. ***The Honorable Court be pleased to revoke the Grant issued in Kimilili Succession Cause No. 15 of 1970 in favour of Wepkhulu Saratuki (now deceased);*** 5. ***THAT this Honorable Court be pleased to revoke the registration of land parcel no. Kimilili/Kamakuywa/409 in the name of the deceased; Wepukhulu Saratuki, and vest the same in the name of the applicant Joseck Simiyu Prichani;*** 6. ***…Spent;*** 7. ***Costs of this application be provided for.*** 8. The applicant has grounded his application on facts set out in the body of the Motion and in his supporting affidavit, together with his further affidavit sworn on 17th April 2025. According to the applicant, he filed an application dated 4th December 2009, which this court dismissed on 3rd March 2020. In summary, the court found that land parcel number Kimilili/Kamakuywa/409, measuring approximately 33.5 acres, properly and legally devolved to the respondent, his father. 9. On 17th July 1965, the suit parcel of land was registered in the name of the deceased, the applicant’s paternal grandfather, under ID No. ID/NK/315090. He died on 14th November 1963. Thereafter, on 27th May 1970, the respondent and the deceased’s son initiated succession proceedings in the Kimilili District Magistrate’s Court, Succession Cause No. 15 of 1970. A certificate of succession was subsequently issued to him pursuant to section 120 of the Registered Land Act. 10. The said suit parcel of land was registered in the name of the respondent on 26th November 1970. He observed that registration took place without the respondent’s ID. On 23rd January 2021, the respondent passed on. Subsequently, the applicant’s brothers, the interested parties herein, filed Kimilili ***SPM SC No. E005 of 2023***. He was not aware of the said proceedings, as he was not served. However, he stumbled upon the proceedings by chance. It was here that he noted that the said proceedings sought to devolve the suit land into the respondent’s beneficiaries, himself included. 11. On 7th October 2009, the applicant placed a restriction on the suit land, pending the determination of Bungoma ***ELC No. 69 of 2009***. He visited the registry on 5th May 2023 where it was discovered that on 3rd June 2016, a rectification of the register was done on the owner to read Julius Wepukulu Saratuki. He observed that I.D. No. 7587730, used by Saratuki Wambululu, was also used by Wepukhulu Saratuni in 2016. 12. Cognisant of the anomalies, the applicant wrote two letters dated 26th June 2023 and 14th July 2023 to the Bungoma Land Registrar. In response, dated 21st July 2023, the Land Registrar advised him to file a suit in court to cancel the registration. He also wrote to the Principal State Counsel on 16th August 2023 regarding the IDs and was advised to report to the Directorate of Criminal Investigations. He reported the matter on 4th October 2023 at the Kimilili Sub-County Criminal Investigation Office. 13. In turn, by letter dated 16th October 2023, the office wrote to the National Registration Bureau Nairobi seeking clarification. In response, the Director of the National Registration Bureau wrote on 30th November 2023 that ID/NK/315090 was not in their database. Additionally, ID No. 7587730 was held by Julius Wepukhulu Saratuki. The applicant thus wondered how that ID was used to register the estate in his grandfather's name. 14. The applicant prayed that the application be allowed for the following reasons: he discovered a new and important matter of evidence indicating that Wepukhulu Saratuki obtained the grant fraudulently. The subsequent registration was therefore a nullity, as it was obtained by means of fraud. That, as at 4th December 2009, this information was not within the applicant’s purview. For those reasons, an order for revocation was necessary to meet the ends of justice. Finally, the determination of this application will have a bearing on Kimilili SPM SC No. E005 of 2023. 15. The 1st interested party filed a reply affidavit and a further affidavit, both sworn on 12th May 2025 and 9th September 2025, respectively, on his own behalf and on behalf of the 2nd interested party. He acknowledged that the applicant was his eldest brother and added that, prior to his death, the deceased respondent was the registered proprietor of the suit land. He was survived, inter alia, by the interested parties and the applicants, all of whom are his living sons. He further stated that the said land, being ancestral, belonged to his grandfather and devolved into the name of their deceased father. 16. The 1st interested party recalled that the applicant filed an application for revocation in these proceedings previously seeking to annul the grant of letters of administration issued on 7th August 1970. Upon hearing the evidence of the parties, the court, by judgment dated 3rd March 2020, dismissed that application. He thus noted that the prayer for revocation of grant was *res judicata* as no appeal was sought by the applicant. 17. He contended that in July 2020 the deceased shared the suit land to his widow and children. A surveyor was instructed to prepare the mutation forms in line with the boundaries marked on the ground. That the respondent died leaving a will, the subject of the proceedings in Kimilili SPM SC No. E005 of 2023. They have since filed summons for confirmation of grant dated 26th January 2024. The applicant herein is a beneficiary and has been allocated his share. He was further cognisant of the several suits lodged by the applicant, as well as ID No. 7587730. For those reasons, and further that the applicant was guilty of laches, the interested parties prayed that the application be dismissed. **THE SUBMISSIONS** 1. At the hearing of the application, the parties canvassed the matter by way of written submissions. The interested parties filed their written submissions dated 25th September 2025. They submitted that the decision of 3rd March 2020 was never appealed. Accordingly, their application for review was without merit, as the letter dated 30th November 2023 confirmed that Julius Wepukhulu Saratuni was the holder of ID No. 7587730; the register of the suit land was rectified in line with section 79(1) of the Land Registration Act on 3rd June 2016; and the applicant was a litigious litigant. In their view, no grounds were enunciated to justify the review of the impugned decision. 2. Lastly, the interested parties submitted that the application was res judicata, as the issue of revocation was determined by this court in its judgment dated 3rd March 2020. They cited several decisions urging this court to find that the application contravened section 7 of the Civil Procedure Act. They prayed that the application be dismissed with costs. 3. The applicant filed his written submissions dated 16th September 2025. The applicant submitted that the present application was not barred by *res judicata*, as he could not have raised the new facts he discovered recently regarding fraud. He further contended that section 76 of the Law of Succession Act gave this court powers to reopen and revoke a grant obtained through fraud or concealment. He added that the application had met the statutory threshold and ought to be allowed as prayed. **ANALYSIS AND DETERMINATION** 1. I have considered the application, the rival responses, the parties' written submissions, and the law. The application seeks a review of the judgment dated 3rd March 2020 and the revocation of the grant issued in favour of the deceased respondent. These shall be the two issues to be determined. 2. On the application for review of judgment, the applicant stated that, on account of the discovery of new and important evidence, namely that Wepukhulu Saratuki obtained the grant fraudulently, the court ought to review its decision of 3rd March 2020. 3. The law on review of a grant is set out in section 80 of the Civil Procedure Act and in order 45, rule 1 of the Civil Procedure Rules. Section 80 provides that any person may apply for review of a decree or order from which an appeal is allowed but from which no appeal has been preferred, or where no appeal is allowed. Under order 45, rule 1 (b) of the Civil Procedure Rules, in part: ***“any person considering himself aggrieved 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…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. The present review is premised on the discovery of new and important matter arising from the application, namely the discovery of the ID numbers of the deceased and the applicant’s father. It also emanates from information obtained from the Land Registry. In assessing the threshold for review, Mativo, J. (as he then was), in the case of Republic vs. Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) had this to say: **“*25. Discussing the scope of review, the Supreme Court of India in the case of******[[15]](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/6379/eng%402019-06-25%22%20%5Cl%20%22_ftn15%22%20%5Co%20%22) had this to say:-*** **the power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ..... means a reason sufficiently analogous to those specified in the rule”** 1. Looking at the reasons given, in my view, I am not persuaded that the evidence sought to be adduced could not have been discovered earlier. The applicant engaged the Bungoma Land Registrar, the Principal State Counsel, and the Kimilili Sub-County Criminal Investigation Office sometime in the year 2023. These offices have existed ever since the applicant was a party to these proceedings. No reasons whatsoever were advanced by the applicant to demonstrate that, for one reason or the other, that he suffered insurmountable challenges or any impediment that would have prevented him from seeking the information from those relevant offices. 2. Furthermore, even after he obtained the information in 2023, he only filed the application in 2024 before it was amended the following year. This delay is inordinate, inexplainable and certainly inexcusable. 3. The applicant also seeks to review the judgment dated 3rd March 2020 in which he sought to revoke/annul the grant issued to the respondent (now deceased). As rightly pointed out , the applicant had previously lodged an application for revocation of the grant that was dismissed on 3rd March 2020. That application was similarly hinged upon fraudulent claims and concealment of material facts, but based on grounds not articulated in the present application. 4. Section 7 of the Civil Procedure Act bars a party from trying any issue that has already been directly and substantially decided in a previous, competent suit between the same parties or those litigating under the same title. An application for revocation of the grant was filed against the respondent on account of fraud and concealment of material facts. On the face of it, the application appears to meet the requirements for an issue to be res judicata. Bearing in mind the general principle of res judicata, did the applicant fall within the exceptions? The Supreme Court in John Florence Maritime Services Ltd & another vs. Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) held as follows: ***“In granting exemptions to the applicability of res judicata, courts would consider whether there was potential for substantial injustice if a court did not hear a constitutional matter or issue on its merits. Before a court could arrive at such a conclusion, it had to examine the entirety of the circumstances as well as address the factors for and against the exercise of such discretionary power. In the alternative, a litigant had to demonstrate special circumstances warranting the court to make an exception.”*** 1. From the above decision of the Supreme Court, a party would only benefit from the exceptions to the doctrine if the issue was constitutional in nature, as the first basis for consideration. Thereafter, a party has to demonstrate special circumstances and the potential for substantive injustice. Regrettably for the applicant, the application did not fall within the exceptions. There is no reasonable or justifiable basis for granting the orders sought. 2. Finally, it is important to note that, having died in 2021, the respondent cannot be the subject of adverse orders; any such orders can only be made against his estate. In fact, the suit against him in his personal capacity abated a year after his death. This renders the application incompetent. 3. In view of the foregoing, I find that the application not only lacks merit but is also incompetent. It is hereby dismissed with costs to the respondents. **Dated, signed and delivered virtually this 21st Day of May, 2026.** **R.E. OUGO** **JUDGE** **In the presence of:** **Mr. Murunga for the Petitioners/Respondents** **Miss Nekesa h/b for Mr. Kapten for the Applicant** **Wilkister C/A**