https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11939

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **MACHAKOS LAW COURTS** **HIGH COURT CIVIL APPEAL NO. E118 OF 2025** JUSTUS MWENDWA KITAVI…………………………………………..1ST APPELLANT JOSEPHAT KISANGI KITAVI…………………………………………..2ND APPELLANT VERSUS LESEDI DEVELOPERS LIMITED………………………….………………RESPONDENT **JUDGMENT** 1. The Appellant, being dissatisfied with the Ruling and Order of the Senior Principal Magistrate (Hon. H. Onkwani) delivered on 30th April 2025 in Kithimani Succession Cause No. 112 of 2018, lodged the present appeal. 2. In the Memorandum of Appeal dated 15th May 2025, the Appellants contended that the Learned Magistrate erred in law and fact by: 3. Mistaking the Appellant’s Application for Review dated 20th March, 2024 for an Application for Rectification of Grant; 4. Misconstruing the Appellants’ Application for Review dated 20th March, 2024 as having been brought under Section 74 of the Law of Succession Act and Rule 43 (1) of the Probate and Administration Rules, whereas it was not; 5. Dismissing the Appellant’s Application for Review dated 20th March, 2024; 6. Failing to award costs of the Application to the Appellants for the reason that this is a family matter, whereas, according to the Appellants, it is not 7. The Appellants seek orders that the appeal be allowed on grounds that the Ruling and Order of Hon. H Onkwani (SPM) delivered on 30th April 2025 in Kithimani Succ. Cause No 112 of 2018- In the Matter of the Estate Kitavi Muasya be set aside: 8. The Appellants further seek an order reviewing the orders made by Hon. B. S. Khapoya (SPM) on 8th March 2023 as reflected in the Certificate of Confirmation of Grant dated 16th March 2023 by substituting the names of the beneficiaries in the manner proposed in the Application for Review dated 20th March 2024. 9. The Appellants also seek costs of this Appeal and of the Application dated 20th March 2024 before the trial court. 10. The background of the case, briefly, is that by a Notice of Motion dated 20th March, 2024, the Appellant sought an order that the Honourable Court review its orders dated 8th March 2023 issued by B.S Khapoya, made vide the certificate of confirmation of grant dated 16th March 2023: 11. The grant of letters of administration intestate was issued to the 1st Appellant and Julius Kaloki Kitavi on 19th November 2019. Following the demise of Julius Kaloki Kitavi, the grant was rectified to substitute him with the 2nd Appellant. 12. Thereafter, the grant was confirmed on 8th March 2023, and a Certificate of Confirmation of Grant was issued on 16th March 2023. 13. Before the grant was confirmed, the Respondent approached the 1st Applicant, then the sole administrator, for the purchase of a parcel of land measuring 4.051 hectares, forming part of the deceased estate. According to the Appellants, the Respondent’s advocates advised the 1st Appellant that, as an administrator, he had authority to sell and transfer the property. 14. The 1st Appellant executed an Agreement for Sale dated 2nd July 2022 in favour of the Respondent. 15. The Appellants contend that the 1st Appellant was not represented by an advocate during the transaction and relied on the advice given by the Respondent's advocates. 16. Following the confirmation of the grant, the Appellants contend that the names of the beneficiaries appearing in the Certificate of Confirmation of Grant did not reflect the parties' intention and therefore filed the Notice of Motion dated 20th March 2024 seeking review of the orders made on 8th March 2023. 17. In a Ruling delivered on 30th April 2025, the learned Senior Principal Magistrate held that the sale of part of the deceased's estate before confirmation of the grant amounted to intermeddling with the estate. 18. The court, however, found that the orders sought did not fall within the ambit of Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules and consequently dismissed the application. 19. The present Appeal was canvassed by way of written submissions 20. The Appellant submitted that the Learned Magistrate fundamentally misapprehended their Notice of Motion dated 20th March 2024 by treating it as an application for rectification of grant under Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules, whereas it was expressly brought under Section 80 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules and Rules 63 and 73 of the Probate and Administration Rules seeking review of the orders made on 8th March 2023. 21. The Appellant argued that the application sought to correct an illegality arising from the sale of part of the deceased's estate before confirmation of the grant, which subsequently informed the mode of distribution reflected in the Certificate of Confirmation of Grant. 22. According to the Appellants, such an illegality could not be remedied through rectification under Section 74 of the Law of Succession Act because the relief sought would fundamentally alter the mode of distribution of the estate. 23. The Appellants further maintained that review, rather than rectification, was therefore the proper procedural avenue. 24. The Appellants submitted that the trial court itself acknowledged that the impugned transaction amounted to intermeddling with the estate contrary to Section 45 of the Law of Succession Act and that the defects complained of fell outside the scope of Section 74. 25. Despite making those findings, the Learned Magistrate nonetheless dismissed the application on the mistaken premise that it sought rectification of the grant. 26. The Appellants relied on the decision of the Court inRe:Estate of Charles Kibe Karanja (Deceased) (2025) eKLR for the proposition that where alterations sought affect the mode of distribution, the proper remedy is an application for review of the confirmation orders rather than rectification of the grant. 27. On costs, the Appellants contended that the Learned Magistrate exercised her discretion on wrong principles by directing each party to bear its own costs on the basis that the matter was a family dispute. 28. The Appellants argued that the Respondent was a stranger to the deceased's family and that the dispute was essentially commercial in nature. 29. They further submitted that the Respondent had delayed the proceedings by repeatedly seeking extensions while failing to file any response to the application. 30. The Appellants urged the appellate court to interfere with the order on costs and award them costs both in the trial court and on appeal. 31. The Respondent opposed the appeal in its entirety and submitted that the learned magistrate properly evaluated the evidence and correctly applied the law. 32. It was contended that the Appellants had failed to demonstrate any error of law or fact warranting interference by the appellate court. 33. The Respondent submitted that the dispute arose after the 1st Appellant, as the administrator of the deceased's estate, entered into a sale agreement dated 2nd July 2022 for the sale of a portion of the estate measuring 4.051 hectares. 34. The Respondent submitted that, pursuant to that agreement, it was included as a beneficiary in the Certificate of Confirmation of Grant issued on 16th March 2023. 35. The Respondent argued that the Appellants subsequently sought, through their application dated 20th March 2024, to remove the Respondent's name from the confirmed grant and substitute it with their own. 36. On the first three grounds of appeal, the Respondent submitted that the learned Magistrate did not misapprehend the nature of the application. 37. According to the Respondent, the relief sought by the Appellants was essentially to correct what they alleged was an erroneous inclusion of the Respondent's name in the confirmed grant. 38. Therefore, the learned Magistrate correctly considered the application within the framework of Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules, which govern rectification of grants. 39. The Respondent relied on Re: Estate of Jonah Kiprotich arap Tuwei (Deceased), Succession Cause No. 108 of 2019 and In the Matter of the Estate of Geoffrey Kinuthia Nyamwinga (Deceased) [2013] eKLR in support of the proposition that rectification of grants is governed by Section 74 of the Law of Succession Act. 40. The Respondent further submitted that the learned Magistrate correctly found that the Appellants' application sought to substitute one beneficiary for another in the confirmed grant, a matter which properly fell within the ambit of Section 74. 41. It was argued that the learned Magistrate neither misdirected herself nor erred in dismissing the application and that grounds one to three of the appeal lacked merit. 42. On the issue of costs, the Respondent submitted that the award of costs is a matter within the discretion of the court under Section 27 of the Civil Procedure Act. 43. It was argued that the trial court properly exercised that discretion by directing each party to bear its own costs and that the Appellants had not demonstrated that the discretion was exercised on wrong principles or in a manner warranting interference by the appellate court. 44. The Respondent therefore urged the Court to dismiss the appeal with costs. 45. I have reviewed the Record of Appeal, the Memorandum of Appeal and counsel’s respective written submissions on the case. 46. The issue falling for determination is fairly straightforward, and it is whether the trial court misconstrued the Appellant’s application thereby occasioning a miscarriage of justice and whether the Appellants were entitled to costs before the trial court. 47. The answer to the above is readily available: a perusal of the ruling of the trial court answers that query rather emphatically. 48. In her analysis and determination portion of her ruling, the learned Magistrate considers the provisions of section 45 of the Law of Succession Act; she then considers the provisions of section 74 of the Law of Succession Act and Rule 43 of the Law of Succession Rules. 49. For emphasis, I will reproduce the determinative part of her decision verbatim. The learned Magistrate held as follows: *“The said illegality does not fall within the ambit of section 74 for rectification of grant. The orders sought do not fall within the errors to be corrected under section 74 and Rule 43 of the Law of Succession Act. In conclusion, I find no merit in this application dated 20th March 2024. Application dismissed in its entirety. This being a family matter, each side will meet its own costs.* 1. It is indubitable that in the learned Magistrate’s mind what she was considering was an application for rectification of grant under section 74 of the Law of Succession Act. 2. The principal prayer sought by the Appellant before the trial court is set out at paragraph 1 of the Ruling, which is, for the Honourable Court to review its orders dated 8th March 2023 issued by B.S. Khapoya, made vide the certificate of confirmation of grant dated 16th March 2023 herein substituting Justus Mwendwa Kitavi and Josphat Kisangi Kitavi for Lesedi Developers Limited. 3. It is apparent that what the Appellant sought from the trial court was a review of the court’s orders. 4. I have also perused the motion by the Appellant that sought the said prayers: the Appellant invoked the provisions of Article 50(1) of the Constitution, section 80 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Rule 63 and 73 of the Probate and Administration Rules: Order 45 Rule 1, 2 and 3 of the Civil Procedure Rules, 2010. 5. The Appellant did not invoke the provisions of section 74 of the Law of Succession Act. 6. Rule 63 of the Probate and Administration Rules makes provision for the application of specific provisions of the Civil Procedure Rules and High Court (Practice and Procedure) Rules to proceedings under the Probate and Administration Rules; among the provisions included is Order 45 of the Civil Procedure Rules that provides for review which the Appellant was seeking. 7. Section 74 of the Law of Succession, on the other hand, provides that errors in names and descriptions, or in setting out the time and place of the deceased, death or the purpose in a limited grant, may be rectified by the Court and the grant of representation, whether before or after confirmation, may be altered and amended accordingly. 8. It cannot be gainsaid but those are two distinct jurisdictions of the court. 9. I think I have stated enough to show that the Appellants were not heard on their application for review: they argued one case, and the trial court determined another. 10. The upshot is that there was no hearing of the Appellants’ application dated 20th March 2024. 11. The learned Magistrate clearly misdirected herself on the application before her. 12. Having established that the Appellants weren’t heard on their application, should this court proceed to hear and determine the same? I don’t think so, as that would constitute a usurpation of the first instance jurisdiction of the trial court to hear and determine the application for review of its orders. 13. A reading of Order 45 (1)(1) of the Civil Procedure Rules, which concludes as follows: *“…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. It is also worth noting that an appeal from applications for review under Order 45 is permitted without leave and determining the application may limit the Appellant’s right to appeal. 2. It is my perception that the trial court may need to make certain findings of fact and exercise first instance discretion over the application which would be inappropriate for this court to do. 3. The interest of justice therefore requires that the matter be reconsidered by the trial court first before this court considers such application. 4. The provisions of section 78 (1) (b) of the Civil Procedure Act allow this Court to remand the case back to the trial court for reconsideration, which would be apropos in the circumstances of the case herein. 5. I believe the Appellant has made out a case for upholding the appeal, which succeeds, I therefore order as follows: 1. The Appeal be and is hereby allowed 2. The Ruling of Hon. H. Onkwani (SPM) delivered on 30th April, 2025 in Kithimani Succession Cause No. 112 of 2018 in the matter of the Estate of Kitavi Muasya and consequential order/Decree therefrom be and are hereby set aside. 3. The case is remitted back for hearing de novo of the Appellants' application dated 20th March 2024. 4. The Appellants shall have costs of the Appeal. **Emmanuel Bitta** **Judge of the High Court** Dated, signed and delivered via Microsoft Teams at Mombasa this 30th day of July 2026. In the presence of: Nechesah C/A Awuor for the Appellant Kamau h/b for Njagi for the Respondent