https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11122

In re Estate of Soi (Deceased) (Succession Cause 10 of 2018) [2026] KEHC 11122 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11122 (KLR) Republic of Kenya In the High Court at Bomet Succession Cause 10 of 2018 JK Ng'arng'ar, J July 23, 2026 IN THE MATTER OF THE ESTATE OF SAMWEL KIPKEMOI SOI (DECEASED) Between Catherine Chepkurui Soi 1st Applicant Sally Jepkoech 2nd Applicant and Linner Chemetet Soi Respondent Ruling 1.The Applicants filed a Notice of Motion Application dated 4th November 2025 where they sought a review of this court’s Ruling dated 21st October 2025. 2.The Application was brought under section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules and Rules 63 and 73 of the Probate and Administration Rules. The Application was based on the grounds on the face of the Application and further by the annexed Supporting Affidavit of Catherine Chepkurui Soi and Sally Jepkoech sworn on 4th November 2025. The Applicants’ case. 3.The Applicants stated that this court delivered its Ruling on 21st October 2025 confirming the Grant dated 20th December 2019 and adopted the mode of distribution contained in the Summons for Confirmation of Grant dated 25th September 2019. That the said distribution omitted to detail the specific acreage of Kericho/Silibwey/1035 and this constituted ab error apparent on the face of the record. The Applicants further stated that this caused difficulty in implementing the Grant and finalizing the administration of the estate. 4.It was the Applicants’ case that the said Ruling was adverse to them and they stood to suffer irreparable loss. 5.Through their written submissions dated 30th April 2026, the Applicants submitted that the County Land Registrar and County Surveyor ought to visit Kericho/Silibwey/1035 and ascertain the true status of the said parcel. They relied on re Estate of Ishmael Muchiri Nkinyangi (Deceased) [2019] KEHC 3612 (KLR). That it was necessary to shed light on the situation on the ground and further that no prejudice would be suffered by the Respondent. 6.It was the Applicants’ case that they had met the threshold for the grant of the review order. That failure by this court to state the acreage of Kericho/Silibwey/1035 created ambiguity and it was an error on the face of the record. They relied on Selian Holdings Company Limited vs NIC Bank Limited [2017] KEELC 349 (KLR). That the confirmed Grant was unclear in respect of the acreage of Kericho/Silibwey/1035. Response 7.Through her Replying Affidavit dated 20th November 2025, the Respondent stated that she filed the Summons for Confirmation of Grant dated 25th September 2019 after having consulted the Applicants who were her co-petitioners and refused to co-operate. That she opted to kick start the process of distribution by listing the acreage of the parcels she knew. The Respondent further stated that the Applicants filed a Protest and she (Respondent) responded to the issues raised in the Protest. 8.It was the Respondent’s case that she did not have an issue with the County Land Registrar visiting Kericho/Silibwey/1035 to confirm and verify the acreage save that the exercise be done in line with the current existing settlement. It was the Respondent’s further case that this court’s Ruling dated 21st October 2025 addressed all the issues regarding the deceased’s estate. That the same should not be reviewed. 9.Through her written submissions dated 16th February 2026, the Respondent submitted that in respect to the deceased’s estate, the issue had been narrowed down to the distribution of Kericho/Silibwey/1042 and the same was dealt by this court in its Ruling dated 21st October 2025. That all other issues between the parties had been resolved through Mediation and it included the distribution of Kericho/Silibwey/1035. The Respondent further submitted that in her response to the Applicant’s Replying Affidavit, she clearly stated the acreage. 10.I have gone through the record, its pleadings, the Applicants’ written submissions dated 30th April 2026 and the Respondent’s written submissions dated 16th February 2026. The only issue for my determination was whether the Applicants has met the requirements for a grant of a Review Order. 11.It is trite law that the High Court has a power of Review. The law on Review is based on section 80 of the Civil procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010. It is salient to note that this court’s power must be exercised within this circumscribed legal framework. 12.Section 80 of the Civil Procedure Act provides as follows: -Any person who considers himself aggrieved-(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, May apply for a review of judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit. 13.Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -(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 review of judgement to the court which passed the decree or made the order without unreasonable delay. 14.From the above provisions, it is clear that section 80 of the Civil Procedure Act gives the power of Review while Order 45 of the Civil Procedure Rules 2010, sets out the rules. The rules limit the grounds applicable for Review as follows: -i.The discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the Applicant or could not be produced by him at the time when the Decree was passed or the Order made.ii.On account of some mistake or error apparent on the face of the record.iii.Any other sufficient reason and that the Application has to be made without unreasonable delay. 15.The Applicants anchored their prayer for a review order on the ground of error apparent on the face of the record. That this court’s failure to indicate the specific acreage of Kericho/Silibwey/1035 constituted an error apparent on the face of the record. The court in Nyamogo & Nyamogo vs Kogo (2001) EA 170 rendered itself as follows: -“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of undefinitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal.” 16.I am persuaded by Mativo J. (as he then was) in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR), where he stated: -“The starting point is 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…..” 17.I have looked at the Ruling dated 21st October 2025 and the said Ruling adopted the distribution contained in the Summons for Confirmation of Grant dated 25th September 2019. In regards to the parcel in contention, Kericho/Silibwey/1035 was distributed to the effect that 1st Applicant would get Amalo Estate, the 2nd Applicant would get Safe Lodge and the Respondent would get SOT Rural Craft. The only issue was the acreage as per the Summons for Confirmation was unknown. In my view, this did not amount to an error apparent on the face of the record as the court adopted the most balanced and fair distribution and that was presented by the Respondent in her Summons for Confirmation. 18.To cure the above problem, the Applicants sought an order for the County Land Registrar, Bomet County and the County Surveyor, Bomet County to visit Kericho/Silibwey/1035 to carry out a survey and confirm its acreage. The Respondent stated that she did not oppose the prayer. 19.In the final analysis, it is my finding that the Applicants have not met the threshold for the grant of the review order. 20.In the end, I make the following orders: -I.The Notice of Motion Application dated 4th November 2025 has no merit and is dismissed.II.An order to issue directing the County Land Registrar, Bomet County and the County Surveyor, Bomet County to visit Kericho/Silibwey/1035 and prepare a comprehensive report on its status capturing the acreage and the developments thereon.III.Each party to bear their own costs. RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 23RD DAY OF JULY, 2026..................................HON. JULIUS K. NG’ARNG’ARJUDGERuling delivered in the presence of:Siele/Zachary (Court Assistants)Nandi for the Applicant