https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8846

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **SUCCESSION CAUSE NO. E102 OF 2022** **IN THE MATTER OF THE ESTATE OF MAGERER ARAP CHEPKULUL (DECEASED)** **NANCY CHERONO CHEPKULUL……………………………….APPLICANT** **RULING** 1. Judgement in this matter was delivered on 9th May, 2026 confirming the grant and distributing the estate and a Certificate of Confirmation of Grant was subsequently issued. 2. The Applicant **Nancy Cherono Chepkulul** vide the Summons dated 26th January 2026 brought pursuant to **Sections 1A, 1B, 3, 3A** and **80** of the **Civil Procedure Rules, Order 45 Rules 1** and **2** of the **Civil Procedure Rules**, **Section 47** of the **Law of Succession Act** and **Rules 63** and **73** of the **Probate and Administration Rules** seeks the following orders: - 3. ***Spent*** 4. ***That this Honourable Court be pleased to review and vary its judgment delivered on the 9th day of May, 2025*** 5. ***That upon review of the said judgment, the Certificate of Confirmation of Grant issued on 9th day of May, 2025 be amended so as to reflect the revised and agreed mode of distributions*** 6. ***That the revised distribution be adopted on the basis of the current occupation, settlement and possession of the estate properties by each of the five houses of the deceased*** 7. ***That the amended Certificate of Confirmation of Grant do issue accordingly*** 8. ***That costs be in the cause.*** 9. The Application is premised on the facts set out on its face and is further supported by the Applicant’s Affidavit of even date. She deposes that upon commencement of implementation of the confirmed grant, it became apparent that the mode of distribution did not reflect the current factual and legal positions of the beneficiaries. That a meeting was held with the beneficiaries and the representatives of the deceased beneficiaries where it was agreed to adopt a more practical retribution based on current occupation and settlement. 10. That the proposed review seeks not only to realign the distribution with the agreed occupation on the grounds, but to clarify that all shares attributable to deceased beneficiaries devolve to their respective estates, protect the interests of the beneficiaries of deceased’ persons; comply with Court’s directions and the orderly and lawful administration of the estate. 11. She avers that all affected parties have consented to the mode of distribution and that no prejudice shall be occasioned to any beneficiaries. That unless the review is allowed the distribution remains impractical and susceptible to avoidable disputes. **Applicant’s Submissions** 1. It is submitted that the power of review and its orders is anchored under **Section 80** of the **Civil Procedure Act** and **Order 45 Rule 1** of the **Civil Procedure Rules**. **Section 47** of the **Law of Succession Act** and **Rule 73** of the **Probate and Administration Rules** donate inherent power to this Court to make such orders as may be necessary for the ends of justice and to ensure proper and effective administration of estates. 2. The Applicant cited ***In re Estate of Juma Omwanda (Deceased)* [2025] eKLR** and ***Manyasa (Suing as Personal Representative of the Estate of Mapesa Eshitemi) v Mapesa & Another* [20261 KEELC 1127 (KLR),** and ***In re Estate of Anne Chepngalo Chebii (Deceased)* [2022] KEНC 140 (KLR)** to submit on the instances that the Court can review its own decision. **Analysis and Determination** 1. I have considered the application together with the arguments advanced in support. 2. The Applicant seeks review so that the Certificate of Confirmation of Grant may be amended to align with the judgment of 9th May, 2026, the current occupation and settlement and the arrangement reached among all beneficiaries in the meeting held on 3rd January 2026. 3. It goes without saying that once a Court has pronounced judgment, it no longer has any control over the matter. The Court is aid to be *functus officio*. The power of review is an exception to this rule as it allows the same Court to look at its own judgment once again and correct it. 4. **Section 80** of the **Civil Procedure Act** Grants Courts the power to review their own decrees or orders provided that no appeal has been preferred.**Order 45 Rule 1** of the **Civil Procedure Rules** specifies the grounds of review to wit:- 5. Discovery of new and important matter or evidence which, despite due diligence, was not within the applicant’s knowledge or could not be produced at the time of judgment. 6. Error apparent on the face of the record. That is a clear and obvious mistake that does not require elaborate argument. 7. Any other sufficient 8. The judgment of 9th May, 2026 directed that the estate be distributed in accordance wit paragraph 6 of the affidavit of 19th July, 2024. The Court expressly ordered that shares attributable to deceased beneficiaries would devolve to their estates, and transmission would only be effected upon proper grants of representation, with administrators holding such shares in trust for the ultimate beneficiaries. 9. The application is not premised on discovery of new evidence. That leaves for consideration the grounds of error apparent on the face of the record and any other sufficient reason. 10. Pertaining to the error apparent on the face of the record, In ***Nyamogo & Nyamogo v Kogo* (2001) EA 170** the Court observed as follows; ***“…. An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness 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.*** 1. The Certificate of Confirmation of Grant that subsequently issued was drawn strictly on the basis of the proposals but it did not incorporate the Court’s express directions regarding the estates of deceased beneficiaries. 2. The beneficiaries of the estates of **Julius Katam Chepkulul (Deceased), Alfred Ngasura Katam (Deceased), Stephen Kipsang Towett (Deceased)** and **Joan Chepngeno (Deceased)** have obtained Administration Ad Litem. The drawing in the Certificate of Confirmation of Grant did not capture or incorporate the Court’s Order to include the legal representatives. 3. The difficulty in this matter lies not in the judgment itself which was clear and unequivocal, but in the drawing of the Certificate of Confirmation of Grant. The Court confirmed the grant based on the proposals by the family and it cannot therefore be said that the judgment was in error. 4. The inconsistency arises from the manner in which the certificate was prepared for it failed to incorporate the Court’s express directions regarding the estates of deceased beneficiaries. What is required, therefore, is not a review of the judgment but a rectification of the Certificate of Confirmation of Grant so that it faithfully reflects the orders of the Court. 5. The ground of *“any other sufficient reason”* is residual in nature. Though not defined in the Act, it exists to confer flexibility where justice so demands. 6. The Court in **Magiri v Kamau [2025] KEHC 13417 (KLR)** cited the Court of Appeal decision in **Civil Appeal No. 2111 of 1996 National Bank of Kenya vs Ndungu Njau** where it pronounced itself on review 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.”*** 1. Similar, **Swai v Kenya Breweries Limited [2014] KECA 883 (KLR)** the Court of Appeal held: - ***“…Order 44 rule 1 (now Order 45 rule 1 in the 2010 Civil Procedure Rules) gave the trial Court discretionary power to allow review on the three limps therein stated or “for any sufficient reason.”… As repeatedly pointed out in various decisions of this Court, the words, “for any sufficient reason” must be viewed in the context firstly of Section 80 of the Civil Procedure Act, Cap 21, which confers an unfettered right to apply for review and secondly on the current jurisprudential thinking that the words need not be analogous with the other grounds specified in the order.*** ***In Sarder Mohamed v. Charan Singh Nand Sing and Another (1959) EA 793, the High Court correctly held that Section 80 of the Civil Procedure Act conferred an unfettered discretion in the Court to make such order as it thinks fit on review and that the omission of any qualifying words in the Section was deliberate. In Shanzu Investments Limited v. Commissioner for Lands (Civil Appeal No. 100 of 1993) this Court with respect, correctly invoked and applied its earlier decision in Wangechi Kimata & Another Vs. Charan Singh (C.A. No. 80 of 1985) (unreported) wherein this Court held that*** ***“any other sufficient reason need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the Court by Section 80 of the Civil Procedure Ct and that the other grounds set out in the rule did not in themselves form a genus or class of things which the third general head could be said to be analogous.”*** 1. The jurisprudence is clear that the phrase “any other sufficient reason” was deliberately left open to confer upon the Court a wide discretion to intervene where strict adherence to the other grounds would occasion injustice. 2. In the present case sufficient reason is demonstrated in the issue of prevailing occupation and settlement of the beneficiaries coupled with the consensual arrangement reached by all beneficiaries in the meeting of 3rd January 2026. 3. This is a family that has five houses. They have all consented and agreed on distribution. Succession proceedings are at their core about family. Once the family has reached an arrangement freely and without coercion, the Court is enjoined to respect that consensus unless it offends the law. To disregard such agreement would be to invite discord and unnecessary litigation. 4. Added to this is the absence of prejudice, the consent of all beneficiaries drawn from the five houses and the need to forestall avoidable disputes. The explanation given on why the initial proposal needs to be reviewed is plausible. These considerations reinforce the conclusion that sufficient reason exists under **Order 45 Rule 1** and review is therefore warranted to realign the judgment of the Court with the practical realities of administration. 5. In light of the foregoing, the Court is satisfied that the Summons dated 26th January 2026 meets the threshold for review and is hereby allowed. 6. An amended Certificate of Confirmation of Grant shall issue forthwith and reflect the revised distribution agreed upon by all beneficiaries. 7. There shall be no orders as to costs. It is so ordered. **Signed, Delivered Virtually on Teams platform** **On this 12th day of June, 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Mohochi S.M** **JUDGE**