https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7707

In re Estate of Nyumu (Deceased) (Probate & Administration 79 of 2018) [2026] KEHC 7707 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 7707 (KLR) Republic of Kenya In the High Court at Kiambu Probate & Administration 79 of 2018 MN Mwangi, J May 22, 2026 IN THE ESTATE OF REUBEN NJUGUNA NYUMU (DECEASED) In the matter of Leah Njeri Njuguna Applicant Ruling 1.Before this court for determination is a notice of motion application dated 20th February 2025, filed pursuant to section 47 of the Law of Succession Act, rule 73 of the Probate and Administration Rules, sections 1A, 1B and 3A of the Civil Procedure Act and order 45 rules 1, 2 and 3 and order 51 of the Civil Procedure Rules, 2010. 2.The applicant prays for this court to vacate or set aside the order issued by Hon. Meoli J, directing the administrator of the deceased’s estate to seek a guardianship order for management of the affairs of Moses Mwaura Njuguna, and expunge from the record the erroneous reference to the said person, as being of unsound mind. The applicant also seeks an order for the filing of a fresh summons for confirmation of grant. 3.In her supporting affidavit sworn on 20th February 2020, the applicant, Ms Leah Njeri Njuguna, contended that in the application for confirmation of grant, she made an error due to misadvise by her former counsel. She stated that in the said application, she alleged that Moses Mwaura Njuguna was of unsound mind, yet there was no medical or legal documentation to justify mental incapacity. She stated that no court has issued an order for appointment of a guardian for the said Moses Mwaura Njuguna. The applicant also stated that she realized that there was an error, thus the need to correct the same in the interest of justice. She averred that the application has been filed without unreasonable delay and that there are sufficient reasons for review of the court order of 2nd October 2020, directing that a guardian be appointed to manage the affairs of Moses Mwaura Njuguna. 4.The firm of Wakabu Law Partners filed submissions dated 16th April 2026. Mr. Wakabu, learned counsel for the applicant submitted that the law on review is enshrined in section 80 of the Civil Procedure Act, order 45 rules 1, 2 and 3 of the Civil Procedure Rules, 2010, and rule 73 of the Probate and Administration Rules. He cited the case of Benjoh Amalgamated Limited & Another vs Kenya Commercial Bank Limited [2014] KECA 872 (KLR), to support his submissions. 5.He contended that the court order made for the administrator to pursue guardianship was based on an unproved allegation and error in judgment on the administrator’s part, that Moses Mwaura Njuguna was of unsound mind. Counsel stated that there is need for this court to review the orders made by Hon. Meoli J. Analysis and Determination. 6.I have considered the instant application, the supporting affidavit and the submissions filed by the applicant. The only issue for determination is whether an order for review is justified. 7.Section 80 of the Civil Procedure Act provides the law on review. It states as follows-“Any person who considers himself aggrieved-a.By a decree or order in which an appeal allowed by this Act, but from which no appeal has been preferred; orb.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." 8.In order for an application for review to succeed under order 45 of the Civil Procedure Rules, 2010, any of the following grounds must be proved to exist:-a.There must be discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; orb.There was a mistake or error apparent on the face of the record; orc.There were other sufficient reasons; andd.The application must have been made without undue delay 9.The applicant herein contends that the order made by Hon. Meoli J, to the effect that she should apply for the guardianship of Moses Mwaura Njuguna was issued erroneously on misadvise of her former counsel, that the said person was of unsound mind, which is not the position. 10.This court notes that when the summons for confirmation of grant dated 24th September 2020 was filed, the applicant had indicated that one Moses Mwaura Njuguna was of unsound mind and could not execute the consent. The applicant had attached a Medical Report dated 14th September 2020 in support of the said averment. She now wishes to withdraw the application dated 24th September 2020, and claims that it was based on misrepresentation of Moses Mwaura Njuguna’s mental status. The applicant intends to file summons for confirmation of grant. 11.It is worthy of note that the Court Order of 2nd October 2020 by Hon Meoli J, was anchored on the Medical Report which was the evidence of the mental incapacity of the Moses Mwaura Njuguna, which means that there was no error apparent on the face of the record on the court’s side. In the court record, there is evidence showing his mental incapacity but there is no evidence to show that he is now of sound mind, so as to warrant the setting aside of the impugned court order. 12.There is also no evidence of any other sufficient reason or discovery of a new and important matter to support the application herein. It is apparent that what the applicant is stating is that she lied to the court, and even went to the extent of obtaining a falsified Medical Report to support her claim that Moses Mwaura Njuguna suffers from mental incapacity. The applicant seems to be admitting to having committed perjury, by having filed an affidavit whose averments were false in the application that was before Hon. Judge Meoli. 13.This court further notes that the instant application was filed five (5) years after the said Judge rendered her decision, which is unreasonable delay. As I had stated earlier, there is no proof of any change of circumstances. This court therefore finds that the application herein lacks merits. It is hereby dismissed. DATED, SIGNED AND DELIVERED AT KIAMBU ON THIS 22ND DAY OF MAY, 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Mr Wakabu for the Administrator/applicant.Ms Julia – Court Assistant.