https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6837

In re Estate of Gituro (Deceased) (Succession Cause 548B of 2007) [2026] KEHC 6837 (KLR) (Family) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 6837 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 548B of 2007 HK Chemitei, J May 21, 2026 IN THE MATTER THE ESTATE OF JOSEPH KIBERA GITURO (DECEASED) Between Julius Kibera Gituro Applicant and Esther Wairimu Kibera Respondent Ruling 1.This ruling relates to the application dated 18th January, 2024 filed by the Applicant, Julius Kibera Gituro; seeking for orders that:1.This Honourable Court do review and/or vary the ruling and orders made on the 1st December, 2023.2.The cost of this Application to be provided for. 2.The application is based on the grounds thereof and supported by affidavit sworn by Julius Kibera Gituro on 18th January, 2024 who avers inter alia that on 22nd March, 2022, the High Court, presided over by Hon. A.O. Muchelule J., (as he was then) delivered a ruling on the distribution of the deceased’s estate but did not grant leave to appeal. Being dissatisfied with the decision, he instructed his advocates to initiate an appeal process and consequently sought leave to appeal against the ruling. 3.The Applicant further avers that on 30th March, 2022, his advocates applied for certified copies of the ruling and typed proceedings, but the same had not been supplied due to the pendency of related applications. He annexes a letter requesting the proceedings as evidence of that request. He also states that on 31st March, 2022, he filed a Notice of Appeal and paid the requisite Court fees, annexing copies of the notice and official receipt. He adds that the Notice of Appeal was served upon the Respondent’s advocates through email on 6th April, 2022, although the Respondent allegedly failed to file a notice of address for service. Copies of the email correspondence confirming service were annexed to the affidavit. 4.The deponent states that on 11th April, 2022, he filed an application seeking leave to appeal and stay of execution pending the intended appeal through the firm of Njeri Gathua & Co. Advocates under a certificate of urgency. He explains that because the High Court was on vacation, Hon. L.A. Achode J. (as she was then) issued directions for further mention of the application. Later, on 22nd November, 2022, his advocates sought leave to amend the application since only interim orders pending hearing and determination of the application itself had been sought, instead of substantive relief pending appeal. However, the Deputy Registrar allegedly directed that the application be withdrawn and a fresh one filed instead of allowing an amendment. 5.The Applicant subsequently filed a fresh application dated 10th February, 2023, which culminated in the impugned ruling. The Applicant contends that in determining the subsequent application, the Court misconstrued the prayers sought by treating the matter as one for leave to appeal out of time, yet according to him, such relief had not been sought at that stage. He argues that the Court therefore framed and determined issues that were not before it, effectively prejudging and pre-empting any future application for leave to file an appeal out of time. 6.He maintains that since the proceedings had not yet been typed, he had not even made an application for extension of time, but the ruling nevertheless found that there was no merit in a prayer for leave to appeal out of time. He further states that because of this finding, the Court failed to consider the prayer for stay of execution and effectively locked him out of the appellate process before he had formally sought enlargement of time. 7.He also asserts that it was unnecessary to prepare and file a memorandum of appeal before leave was granted and that the filed Notice of Appeal sufficiently demonstrated his intention to appeal. He therefore urges the Court to review or vary its orders so as to afford him an opportunity to prosecute the intended appeal. 8.The application is opposed vide replying affidavit sworn by Esther Wairimu Kibera on 25th March, 2024. She avers inter alia that she is a co-administratrix of the deceased’s estate and that the application is fundamentally defective, misconceived, frivolous, vexatious and amounts to an abuse of the Court process. 9.She states, on the advice of counsel, that the Applicant has failed to satisfy the legal requirements for review of a Court order. In particular, she maintains that the Applicant has not demonstrated the existence of any new and important matter or evidence that was unavailable despite the exercise of due diligence at the time the impugned ruling was delivered. She also argues that the Applicant has not established any mistake or error apparent on the face of the record, nor any other sufficient reason capable of justifying review of the Court’s decision. 10.Consequently, she asserts that the entire application lacks merit and urges the Court to dismiss it with costs. 11.The Applicant has filed written submissions dated 15th October, 2025. He recounts the procedural history leading to the present application for review. He states that following the ruling delivered by Hon. A.O. Muchelule J. (as he was then) on 28th March, 2022 concerning the estate of the deceased, he filed an application dated 10th February, 2023 seeking stay of execution of the ruling and leave to appeal against the decision. He notes that directions were later issued by Hon. Lady Justice Maureen Odero that the application be canvassed through written submissions and that the Applicant duly filed submissions dated 30th May, 2023. 12.He further explains that the impugned ruling of 28th March, 2022 had confirmed the grant issued to Esther Wairimu Kibera, Julius Kibera Gituro and Esther Muthoni Gitari on 26th November, 2019. According to the Applicant, he promptly filed a Notice of Appeal on 31st March, 2022 only two days after the ruling and simultaneously requested certified copies of the ruling and proceedings, which were later served upon the Respondent on 6th April, 2022. 13.The Applicant further submits that he subsequently filed summons dated 11th April, 2022 through the firm of Njeri Gathua & Company Advocates seeking leave to file an appeal against the ruling. Directions were later issued by Hon. Justice L.A. Achode, J, (as she was then) for the summons to be served and listed before Hon. Justice Muchelule on 27th April, 2022, whereupon the Respondent filed a replying affidavit and submissions in opposition. 14.He explains that on 22nd November, 2022, his counsel orally applied before the Deputy Registrar, Hon. Sitati, for leave to amend the summons. However, the Deputy Registrar allegedly declined to allow the amendment and instead directed the Applicant to withdraw the summons and file a fresh motion, prompting the filing of the motion dated 10th February, 2023. 15.He argues that in the impugned ruling, the Court failed to appreciate that the initial application for leave had been filed timeously and that any delay which later arose was occasioned by the Deputy Registrar’s directions rather than the Applicant’s own conduct. He points out that the first application was filed on 11th April, 2022, approximately 35 days after delivery of the ruling and that after its withdrawal on 19th December, 2022, the second application was filed on 10th February, 2023 within what he considers a reasonable period, especially considering the intervening holiday period. 16.He further contends that the Court committed an error apparent on the face of the record by stating in paragraph 10 of the ruling that the application for leave had been filed in October 2022, 5 months after the ruling, whereas the correct filing date was April 2022. 17.Additionally, the Applicant challenges the Court’s finding that no memorandum of appeal had been filed and therefore the arguability of the intended appeal could not be assessed. 18.In support of this position, he relies on the decision in KIU & Another v Khaemba & 3 Others, where the Court of Appeal held that although no draft memorandum of appeal had been annexed, the Court could still discern the grievances intended to be raised on appeal from the supporting material placed before it. 19.He also cites the Supreme Court decision in Charles Karanja Kiiru v Charles Githinji Muigwa, which affirmed that Courts possess jurisdiction not only to enlarge time for filing appeals but also, in appropriate circumstances, to deem already filed appeals as properly filed in the interests of justice. On the basis of those authorities, the Applicant urges the Court to allow the present application in the interest of justice. 20.The Respondent has filed written submissions dated 13th October, 2025. She opposes the application and submits that it does not meet the legal threshold for review and raises two principal issues for determination: whether the Court should review or vary its earlier ruling and whether the Applicant is entitled to the reliefs sought. 21.According to her, the impugned ruling conclusively determined the issues before the Court and any dissatisfaction with that decision ought to have been pursued through an appeal rather than by way of review. She argues that the Court properly considered and determined the Applicant’s earlier application for stay of execution and leave to appeal against the ruling delivered on 28th March, 2022. She submits that the learned judge correctly found that the application had been filed approximately 5 months after delivery of the ruling and that no draft memorandum of appeal had been annexed to demonstrate the existence of an arguable appeal. 22.She further points out that, in his own supporting affidavit, the Applicant admitted that he had sought leave to appeal out of time under Section 75 of the Civil Procedure Act and Section 7 of the Appellate Jurisdiction Act. 23.Consequently, the Respondent maintains that the Court neither misconstrued the application nor erred in law, but rather properly exercised its discretion in declining the application, particularly given the prolonged delay in finalizing administration of the estate of a deceased person who died in 1990. 24.She further submits that the complaints raised by the Applicant concern the merits of the ruling itself and are therefore matters suitable for an appeal rather than review proceedings. It is contended that the Applicant merely disagrees with the Court’s reasoning and exercise of discretion, including the Court’s analysis under Order 42 Rule 6 of the Civil Procedure Rules. 25.The Respondent also rejects the allegation that the Applicant was locked out of the appellate process, maintaining that the Court correctly concluded that no stay order could issue in the absence of a properly instituted appeal. 26.On the applicable law, she relies on Order 45 Rule 1 of the Civil Procedure Rules and submits that review may only be granted upon demonstration of discovery of new and important evidence, an error apparent on the face of the record or other sufficient reason. It is argued that the Applicant has failed to establish any of those grounds, as no self-evident error has been identified and the application merely seeks to reopen factual findings and evidentiary conclusions already determined by the Court. 27.She cites the decision in Nuh Nassir Abdi v Ali Wario & 2 Others, where the Court emphasized that review jurisdiction is discretionary and should only be exercised where it would serve a useful purpose. She further submits that more than 3 years have elapsed since the distribution of the estate was determined and that the distribution ordered by the Court was fair and equitable to all beneficiaries. 28.In her view, the present application is intended only to delay and obstruct the administration and distribution of the estate by reintroducing matters that have already been conclusively resolved. 29.Reliance is also placed on the Supreme Court decision in Parliamentary Service Commission v Martin Nyaga Wambora & Others on the principles governing review applications. On that basis, she urges the Court to dismiss the application with costs for being an abuse of the Court process and a waste of judicial time. Background 30.The genesis of the instant application are the rulings delivered by Hon. Justice A. O. Muchelule (as he then was ) on 22nd March, 2022 and Hon. Lady Justice M. Odero on 1st December, 2023. 31.In the ruling delivered on 22nd March, 2022, the Court addressed the distribution of the estate of the late Joseph Kibera Gituro, who died intestate on 26th December, 1990. The Court identified the deceased’s surviving children as Charles Gituro Kibera, Esther Wairimu Kibera, Anne Wanjira Kibera, Ruth Wangui Kibera, Simon Gitari Kibera and Lucy Wanjiru Kibera. It was noted that some of the deceased’s children had themselves died, leaving dependants to represent their respective houses. Charles Gituro Kibera was survived by Julius Kibera Gituro, Simon Gitari Kibera was survived by Esther Muthoni Gitari, while Anne Wanjira Kibera was survived by Beatrice Wangui Mwangi. 32.The Court examined the assets said to comprise the estate and found that the deceased had left parcel Gikondi/Thimu/366 measuring 6 acres. However, disputes arose regarding parcel Gikondi/Thimu/321, which had been registered in the name of Simon Gitari Kibera. Esther Wairimu Kibera contended that the land actually belonged to the deceased but had been registered in Simon Gitari Kibera’s name to hold in trust for the family. 33.Esther Muthoni Gitari disputed this assertion and maintained that the parcel belonged to her late husband and had devolved to his estate. The Court held that, under Section 3 of the Law of Succession Act, the parcel was not part of the deceased’s free property and therefore could not be distributed in the succession cause. The Court advised that any claim founded on trust ought to be pursued separately before the Environment and Land Court for determination. 34.The same reasoning was applied to Plot No. 19 Nduma, which was registered in the name of Charles Gituro Kibera but alleged to have been held in trust for the family. Consequently, the Court concluded that the only asset available for distribution in the succession proceedings was Gikondi/Thimu/366. 35.The Court further noted that the administrators of the estate were Esther Wairimu Kibera, Julius Kibera Gituro and Esther Muthoni Gitari. The application before the Court was one dated 25th September, 2019 seeking confirmation of grant and distribution of parcel Gikondi/Thimu/366. Esther Wairimu Kibera proposed that each beneficiary of the deceased should receive an equal share of the 6 -acre parcel, effectively allocating one acre to each beneficiary. Her proposal had initially been supported by consent signed by Ruth Wangui Kibera, Lucy Wanjiru Kibera and Beatrice Wangui Mwangi. 36.The 1st Protestor, Julius Kibera Gituro, opposed the proposed mode of distribution and argued that he should receive 5 acres while the 2nd Protestor should receive 1 acre. Esther Muthoni Gitari, the 2nd Protestor, contended that since the deceased had allegedly given 4 acres comprised in Gikondi/Thimu/321 to Simon Gitari Kibera during his lifetime, the late Charles Gituro Kibera should similarly benefit from 4 acres out of Gikondi/Thimu/366, with the remaining 2 acres being shared between the two sons. Both Protestors therefore took the position that the deceased’s daughters should not inherit from the estate because they were married and settled in their matrimonial homes. Beatrice Wangui Mwangi subsequently withdrew her consent to the Applicant’s proposed distribution. In contrast, Esther Wairimu Kibera maintained that all the deceased’s children, regardless of gender or marital status, were equally entitled to inherit from the estate. 37.The Court found the matter straightforward and applied Section 38 of the Law of Succession Act, which provides for equal distribution among surviving children where a deceased dies intestate without a surviving spouse. The Court rejected the argument that daughters should be excluded from inheritance on account of marriage and held that all six children of the deceased were entitled to equal shares of the estate. 38.Consequently, the Court ordered that each child receive 1 acre from Gikondi/Thimu/366. The share due to Charles Gituro Kibera was to devolve upon Julius Kibera Gituro in trust for himself and the other children of Charles Gituro Kibera in equal shares. Similarly, Esther Muthoni Gitari was to hold Simon Gitari Kibera’s share in trust for herself and his children, while Beatrice Wangui Mwangi was to hold Anne Wanjira Kibera’s share in trust for herself and Anne Wanjira Kibera’s children. The grant issued on 26th November, 2019 was accordingly confirmed in those terms. Given that the dispute involved family members, the Court directed that each party bear their own costs. 39.In the ruling delivered on 1st December, 2023, Hon. Lady Justice Maureen Odero considered the Notice of Motion dated 10th October, 2022 filed by Julius Kibera Gituro seeking stay of execution of the ruling delivered by Hon. Justice A.O. Muchelule on 28th March, 2022 and leave to appeal against that decision. The application was brought under Order 42 Rule 6 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and other enabling provisions of the law. Esther Wairimu Kibera opposed the application through a replying affidavit and the matter proceeded by way of written submissions filed by both parties. 40.The Court revisited the background of the dispute and noted that Hon. Justice Muchelule had earlier ruled that the estate property known as Gikondi/Thimu/366 be shared equally among the six children of the deceased, with the respective representatives of deceased children holding their shares in trust for their own beneficiaries. The grant issued on 26th November, 2019 had consequently been confirmed in those terms. Being dissatisfied with that determination, Julius Kibera Gituro sought leave to appeal and orders for stay of execution pending the intended appeal. 41.In analyzing the application, the Court identified two issues for determination: whether leave to appeal out of time should be granted and whether execution of the ruling ought to be stayed. The Court considered Section 7 of the Appellate Jurisdiction Act and Rule 67 of the Probate and Administration Rules, both of which confer discretion upon the High Court to enlarge time for filing appeals or related applications. 42.The Court further relied on the principles set out in Mwangi v Kenya Airways Ltd, which require consideration of the period of delay, the reasons for delay, the arguability of the intended appeal, the prejudice likely to be suffered by the Respondent, the importance of compliance with timelines and the overall effect on the administration of justice. 43.Applying those principles, the Court observed that the ruling sought to be appealed against had been delivered on 28th March, 2022 whereas the application for leave to appeal was only filed in October 2022, approximately five months later. The Court held that the application had therefore not been brought promptly. Although the Applicant explained that the delay arose after a Notice of Appeal filed in the Court of Appeal had allegedly been dismissed on a technicality, the Court found the explanation insufficient. The Court also emphasized that, while it was not required to conclusively determine the merits of the intended appeal, the Applicant was nevertheless obligated to demonstrate the existence of an arguable appeal. 44.The Court examined the Applicant’s grounds of appeal, particularly the contention that there existed pending suits which could eventually result in additional properties reverting to the estate and necessitating redistribution. Reference had been made to Mukurwe-ini SPM’s Case No. 8 of 2019 and an intended Environment and Land Court suit concerning parcel Gikondi/Thimu/321. 45.However, the Court held that the Mukurwe-ini case concerned a different estate altogether and that the intended Environment and Land Court suit could not form the basis for granting orders because it had not yet been filed. The Court further noted that parcel Gikondi/Thimu/321 had not been listed as part of the estate property available for distribution in the succession proceedings. 46.Additionally, the Applicant had failed to annex a draft memorandum of appeal to demonstrate the grounds upon which the intended appeal would be founded, making it difficult for the Court to assess whether the appeal was arguable. 47.Consequently, the Court found no merit in the prayer for leave to appeal out of time and dismissed the same. Having declined leave, the Court further held that the prayer for stay of execution could not be entertained because no valid appeal had been filed. The Court also observed that the matter involved an estate of a deceased person who had died in 1990 and stressed the need for finality in succession proceedings. It held that it was not in the interests of the estate to continue delaying distribution and further found that the Applicant had failed to demonstrate any substantial loss likely to be suffered if stay was not granted. The entire application dated 10th October, 2022 was therefore dismissed with costs to the Respondent. Analysis And Determination 48.I have gone through the application, the responses thereto and the rival submissions. 49.The present application seeks review and/or variation of the ruling delivered on 1st December, 2023 in which the Court dismissed the Applicant’s request for leave to appeal out of time and for stay of execution of the judgment distributing the estate of the deceased. 50.The principles governing review are settled under Order 45 Rule 1 of the Civil Procedure Rules to wit that review jurisdiction is confined to instances of discovery of new evidence, an error apparent on the face of the record, or other sufficient reason. This Court must therefore determine whether the Applicant has demonstrated any self-evident error or omission warranting interference with the impugned ruling, or whether the grievances raised merely challenge the merits of that decision and are therefore matters for appeal. 51.The guiding principles on reviews were well settled in CIVIL APPEAL NO. 2111 OF 1996, NATIONAL BANK OF KENYA VS NDUNGU NJAU, where the Court of Appeal held that: “…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 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 proceed on an incorrect expansion of the law...” 52.The Applicant’s principal complaint is that the Court misconstrued the earlier application by treating it as one seeking leave to appeal out of time and by concluding that the application had been filed approximately five months after delivery of the ruling of 28th March, 2022. 53.The record before the Court indeed shows that an earlier application seeking leave and stay had been filed on 11th April, 2022 before it was allegedly withdrawn following directions by the Deputy Registrar to file a fresh motion. To that extent, the statement in the impugned ruling that the application was first filed in October 2022 appears factually inaccurate. 54.However, not every factual inaccuracy amounts to an error apparent on the face of the record sufficient to justify review. This Court must further consider whether the alleged error materially affected the outcome of the ruling. Even considering the earlier April 2022 application, the Applicant was still required to satisfy the Court on the principles governing enlargement of time, including the existence of an arguable appeal, sufficient explanation for delay and the broader interests of justice. 55.On the issue of arguability, the Applicant contended that pending and intended proceedings concerning parcel Gikondi/Thimu/321 could ultimately result in additional assets reverting to the estate and necessitating redistribution. However, as correctly observed in the impugned ruling, parcel Gikondi/Thimu/321 had already been found by the succession Court not to form part of the deceased’s free property under Section 3 of the Law of Succession Act and any trust claims relating thereto were directed to be pursued separately before the Environment and Land Court. 56.The Court was therefore entitled to conclude that speculative or intended future litigation could not constitute a sufficient basis for stay or leave to appeal in the succession proceedings. Equally, while the Applicant argues that failure to annex a draft memorandum of appeal was not fatal, the absence of any clear proposed grounds of appeal made it difficult for the Court to meaningfully assess the arguability of the intended appeal. 57.The authorities relied upon by the Applicant, including KIU & Another v Khaemba & 3 Others and Charles Karanja Kiiru v Charles Githinji Muigwa, recognize judicial discretion in procedural matters, but they do not eliminate the requirement that an Applicant must place before the Court sufficient material demonstrating bona fide and arguable grounds of appeal. 58.Further, this Court cannot overlook the need for finality in succession litigation. The deceased died in 1990 and the estate has remained embroiled in litigation for decades. Hon. Justice Muchelule had already confirmed the grant and distributed the only estate property found available for distribution, namely Gikondi/Thimu/366, in accordance with Section 38 of the Law of Succession Act by awarding equal shares to all the deceased’s children irrespective of gender or marital status. 59.The Applicant’s challenge to that distribution was substantially considered and rejected in the ruling of 1st December, 2023. In the present application, the Applicant essentially invites this Court to revisit and reconsider the reasoning and exercise of discretion undertaken in that ruling. Such an invitation falls outside the narrow scope of review jurisdiction and would effectively amount to the Court sitting on appeal over its own decision. 60.Accordingly, I find that although there may have been an inaccuracy regarding the chronology of the earlier application for leave, the Applicant has failed to establish any self-evident error or sufficient reason warranting review or variation of the ruling delivered on 1st December, 2023. The grievances raised primarily concern the merits and correctness of the impugned decision and are therefore matters for determination by an appellate Court. 61.Consequently, I do not find any merit in the application dated 18th January, 2024 and the same is hereby dismissed. 62.Each party to bear its own costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 21ST DAY OF MAY 2026.H K CHEMITEIJUDGE