https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8255

In re Estate of Late Ndunda (Deceased) (Succession Cause 4 of 2019) [2026] KEHC 8255 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 8255 (KLR) Republic of Kenya In the High Court at Makueni Succession Cause 4 of 2019 TM Matheka, J May 29, 2026 IN THE MATTER OF THE ESTATE OF LATE MUTUKU MUTYAMBUI NDUNDA (DECEASED) Ruling 1.What is before me is the Application dated 14/7/2025 brought under section 40 of the LOSA, Rule 49 and 63 (i) of the P & A Rules.The applicant seeks that this court does review clause “c” of the Order issued on 2/4/2025. 2.The grounds are that on 2/4/2025 this court made orders inter alia that the estate of the deceased be shared equally between the 2 houses of the deceased. The court is urged to see that the said order did not take into account that the deceased was polygamous, and that the estate ought to have been distributed in accordance with section 40 of the LOSA – that for this reason there was an error on the face of the record to warrant review of the order. – and that unless the court reviews the order there will be an unjust and inequitable distribution of the estate of the deceased. 3.The application is supported by the Affidavit of Esther Mbane Muema, Grace Mumbua Nzomo, Agatha Mbithe Mutuku and David Malonza, 4.They depone that the deceased had 2 wives – Kitulu Mutuku and Mbose Mutuku. 5.That Kitulu Mutuku had one child Paul Muteti Mutuku. Mbose had 4 children – David Malonza Mutuku, Charles Muema (deceased), Philip Kioko (Deceased) and Alexander Nzomo (Deceased) – that Esther, Grace and Agatha are daughters in-law of the deceased Mutuku Mutyambui Ndunda. 6.Paul Muteti filed a replying affidavit to the application. He depones that there is no dispute that the deceased was polygamous with 2 wives. That the 2nd Respondent David Malonza filed Summons for Confirmation of Grant on 17/8/2005 seeking the distribution of the estate equally among the beneficiaries – that the only issue the applicants had with the distribution was that they had not been included as beneficiaries when the subject property was distributed. 7.That they had filed an objection which was heard by way of viva voce evidence where the two families were heard, and by a ruling delivered on 8/6/2007 the court distributed the subject property in equal shares – that this court had pronounced itself twice on the issue of distribution and the applicants have a recourse to the Court of Appeal. According to him the court considered the unique dynamics of the family, the intention to promote harmony and avoid future disputes – in arriving at the distribution.That the application fails to meet the threshold of Order 45 r 1 of the Civil Procedure Rules. 8.Esther, Grace and Agatha filed a further replying affidavit where they contend that the orders of 8/6/2007 were rendered null and void by the Ruling of 2/4/2025 – that Rule 49 and 63 (1) of the P & A Rules give the court the discretion to lodge the review. 9.That the distribution as it stands is unfair, unjust and prejudicial to the applicants and defeats the ends of justice. 10.Parties filed submissions through their respective counsel. 11.For the applicants it is submitted that the only issue is whether the application for review has any merit. 12.The applicants cite Order 45 rule 1 of the Civil Procedure Rules. That this court ought to have considered the number of children in each house as per section 40 of the LOSA. They also rely on section 40(1) of the LOSA which states.40.Where intestate was polygamous(1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children 13.They also relie on the Court of Appeal – M’Ikungi M’Mwirichia (deceased) (no citation) 14.Muriuki v Murianki [2023] KEHC 23458 (KLR) where the court heldIn a case of this nature where the deceased died intestate and was a polygamous man survived by two widows and children, the anchor on distribution of his estate is Section 40 of the Law of Succession Act which primarily provides as follows;“(1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate, shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.(2)The distribution of the personal and household effects and the residue of the net interest within each house shall then be in accordance with the rules set out in sections 35 to 38” 15.The court was also referred to Re estate of John Musambayi Katumanga(Deceased) 2014 eKLR on the application of s. 40 of the LOSA , where the number of children and the widow in each house are considered as units. 16.This court is urged to consider the number of children in each house and add the wife as another unit 17.The1st Administrator/Respondent cites section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 18.That the question to be answered by this court is whether there is actually an error on the face of the record presented by the clause ‘c’ of the order of 2/4/2025 and relies on Republic v Cabinet Secretary for Interior and Co-ordination of National Government Ex parte Abulahi Said Salad [2019] KEHC 12003 (KLR) where the court cited National Bank of Kenya Ltd vs Ndungu Njau (1996) KLR 469 (CAK) page 381 for the proposition that an error on the face of the record must be self-evident not requiring elaborate arguments to be established; and that it cannot be a ground for review that the “court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of the law” – that if the court has misconstrued a statute/provision of the law – that cannot be a ground for review. Also – Multi Choice (Kenya) Ltd vs Wananchi. Group (Kenya) Ltd and 2 others [2020] eKLR that an error on the face of the record is ‘prima facie’ visible, an error of inadvertence, one that strikes at the mere look of the record. 19.It is submitted by the 1st Respondent that the Objectors contention that the court did not consider section 40 of the LOSA removes it from an error on the face of the record, to a legal issue – that the error is not self-evident but requires elaborate argument. 20.The court is urged to dismiss the application. Analysis and Determination 21.I have carefully considered the application, the rival affidavits, and the submissions. I have also considered the law. I have also read through the Ruling I delivered on 2/10/2023. It is very clear from the Ruling that the matter had been litigated before other Judges, Hon Sitati J, Hon Lenaola J (as he then was) Ong’udi J (as she then was) and the orders were that the estate be distributed between the 2 houses equally. 22.What was came before me was not an issue about the distribution of the estate among the beneficiaries. It was a post confirmation of the grant issue, the manner in which the administrators were enforcing that order. The issue before me was that Paul Muteti and David Malonza – had acted ultra vires the grant post its confirmation where the administrators instead of the administrators registering the land in their names on behalf of their requisite houses – They had themselves registered as the absolute proprietors of the entire estate –LR Nzaui/Nziu/22. 23.The applicants issue then was that they (the applicants) were not named in the certificate of confirmation of grant, and hence their shares would be unknown. To my mind the issue was not about the re-distribution of the estate. It was that the administrators left their names out of the grant. 24.In my view the that explains the other clauses in the order:- This is what I said :24.The summons for revocation of the grant is allowed.a.In the circumstances the grant issued to the respondents and confirmed thereafter be and is hereby revoked and the certificate of confirmation of grant is set aside.b.The registration of the estate Nzaui/Nziu/22 in the names of the respondents and any transactions pursuant to that registration be and are hereby revoked and the Land Registrar is directed to cancel the registration and revert the title to the name of the deceased.c.The Estate be shared equally between the two houses of the deceased.d.Each administrator represents one of the houses. To ensure equitable distribution of the estate, either each of the administrators or the applicants to file in court the list of the beneficiaries from each of the two houses within 21 days hereof.e.For the beneficiaries who are deceased, the list should indicate not only their widows but their children as well and whether or not the children are minors 25.The revocation of the grant was to enable the revocation of the title the administrators had obtained with them as the absolute owners of the estate. 26.On 20th May 2025 further orders issued for grant to issue incorporating the new changes. Perhaps the only clarity would be that a fresh grant was to issue with the same administrators but incorporating the changes as in the above orders. 27.In my considered view there was no error as the orders issued were based on the context of the matter before me. In their totality they speak for themselves with clarity. 28.I find the application without merit – and dismiss the same with no orders as to costs. RULING DATED SIGNED AND DELIVERED VIRTUALLY THIS 29TH MAY 2026MUMBUA T MATHEKAJUDGEIn the presence of:-CA ChrispolMuoka MutetiLaban Muteti