https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8506

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT HOMA BAY** **CIVIL DIVISION** **CIVIL APPEAL CASE NO.E061 OF 2025** **THOMAS OCHIENG OJANGA :::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT** **VERSUS** **NORAH AKINYI :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT** **[Being an appeal from the judgment and/or decree of Hon. J. Orwa Chief Magistrate delivered on 8th October, 2025 in HBCMCC no.11 of 2016]** **JUDGEMENT** **[1]** The memorandum of appeal dated 21st October, 2025 expressed the appellant’s dissatisfaction with the ruling made on the 8th October, 2025 by the Chief Magistrate at Homa Bay in Homa Bay Succession Cause No. MCSUC No.11 of 2016 in which a grant of letters of administration intestate was on 11th July 2017 issued to the appellant, **Thomas Ochieng Ojanga,** respecting the estate of the late Jotham Ojanga Oracha (**deceased**), comprising parcels of land described as Plot No. Kanyada/Kanyabala/830 and Plot No. Kanyada/Kanyabala/888. **[2]** The affidavit in support of the petition for letters of administration intestate indicated that the deceased was survived by the appellant as his only son and two daughters, **Jael Ojanga** and **Sophia Ojanga** aged 51 years, 48 years and 43 years respectively. On 13th June 2018, the appellant belatedly applied for confirmation of the grant. A similar application was made on 15th June 2018 vide summons for confirmation of grant filed herein on 17th July 2018 **[3]** However, none of the two applications was prosecuted. Instead the matter remained dormant for a period of time such that a Notice to Show cause why the grant ought not be dismissed was issued by the court to the applicant/appellant. Indeed the grant was on the 27th April 2021 dismissed under section 76(1) of the Laws of Succession Act. The record is not clear as to what happened thereafter. **[4]** However, on the 28th February, 2025, the matter appears to have been reinstated and was filed for confirmation of the grant on 20th March 2025, on which date it transpired that an affidavit of protest dated 17th march, 2025, had been filed by the protester. The protest was heard and a ruling ws rendered by the court on 17th April 2025, effectively dismissing the protest in the manner it was presented, but holding in abeyance the confirmation of the grant hence the distribution of the estate amongst the beneficiaries. **[5]** In that regard, the trial court rendered itself thus:- **“Whether or not the protestor had been allocated parcel number Kanyada/Kanyabala/1461 measuring 7acres by the deceased herein prior to his demise is an issue calling for viva voce evidence which cannot be determined by affidavit evidence.** **Whether the petitioner/respondent and Elias Omondi (Deceased) are the only dependants of deceased and entitled to a share of land parcel number Kanyada/Kanyabala/830 can only be determined by viva voce (oral) evidence. Considering the fact that petitioner and protestor are family members, and for sustainability of social ties between the family members of the deceased, its only prudent that the protestor and petitioner do avail their witnesses for oral hearing and determination of the protest dated 17/3/2025:**. **[6]** The court went on to state that:- **“As per the fraudulent introduction letter presented to the court by the area chief of Arujo location the petitioner is at liberty to move to DCIO – Homabay and EACC for purposes of ascertaining the authenticity of the contents thereof and ensuring finality of the issue”.** In essence, the conclusion reached by the trial court was that the question of distribution of the estate property amongst the rightful beneficiaries could not be determined in the absence of oral or viva voce hearing of the protest. The court was therefore indirectly giving directions to the effect that the protest dated 17th March 2025 be heard and determined by way of viva voce evidence rather than by affidavit evidence. **[7]** This therefore meant that the parties through the court had to fix a date for oral hearing of the impugned protest. Indeed the matter was fixed for mention for further directions on several occasions, but along the way the petitioner/respondent/appellant filed an application for review of the ruling made on 17th April 2025. The application was heard and determined in a ruling dated 8th October, 2025, dismissing the application for want of merit. The present appeal arises from that ruling and was argued before this court by way of written submissions, duly filed herein by the appellant in person and by the respondent; **Norah Akinyi Ojanga**, through **E. Onono Advocates.** **[8]** The rival submissions were given due consideration by this court along with the grounds for the appeal and those in opposition thereto. The duty of the court was to revisit the impugned application for review on the basis of its supporting and opposing grounds and arrive at its own conclusions. In that regard, it is notable that the parameters for grant of an order of review are set out in **Order 45** **Rule 1** of the **Civil Procedure Rules.** **[9]** It is therein provided that:- “Any person considering himself aggrieved – 1. **By a decree or order from which an appeal is allowed but from which no appeal has been preferred or** 2. **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 of error appears 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 a review of judgment to the court which passed the decree or made the order without unreasonable delay:** **[10]** What therefore arose as the basic issue for determination before the trial court was whether the applicant/appellant had provided sufficient and satisfactory grounds for the review of the impugned ruling on 17th April 2025, hence exercise of the court’s discretion in his favour. The main reason given by the appellant for the impugned application for review was that there ws an error apparent on the face of the record in the ruling delivered on 17th April 2025. It was therefore incumbent upon the appellant to pinpoint and establish the said error. Such errors or mistakes are self evident and do not require elaborate ingredients to be established as was held by the Court of Appeal in the case of **National Bank of Kenya Ltd Vs Ndungu Njau(1997)eKLR** which was cited herein by the appellant. **[11]** Courts have unfettered discretion to review vary or set aside their decisions to avoid injustice or hardship resulting from an accident, inadvertence and excusable mistake or error (**see**, **Shah Vs Mbogo & Another [1967]EA116).** The definition of a mistake or error apparent on the face of the record was given by the Court of Appeal in **Nairobi City Council Vs Thabit Enterprises Ltd [1997]eKLR** in the following terms:- **[12]** **“…………. Error on the face of the record is not what could be described as an incorrect exposition of the law, a failure to apply the appropriate law and omission to raise and discuss appropriate legal issues or taking of an erroneous view of the law on debatable points ………….. with reference to what is an error simpliciter or what is an error on the face of the record, Mulla having admitted the difference was a slim one, went on to opine that:-** **“it can be said of an error that it is apparent on the face of the record when it is obvious and self evident and does not require an elaborate argument to be established”.** **[13]** This definition was in tandem with the definition given in **Muyodi Vs Industrial & Commercial Development Corporation & Another [2006] 1EA243**, where the Court of Appeal stated that:- **“…an error apparent on the face of the record cannot be defined precisely or exhaustively. There being an element of indefiniteness inherent in its very nature and it must be left to be determined Judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record whether an error or 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 record would be made out. An error which has to be established by long drawn process of reasoning or on point 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 adapted by the court in the original record in a possible one it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal.** **[14]** In this appeal, grounds Three (3) to seven(7) of the memorandum of appeal constitute what the appellant considers to be errors apparent on the face of the record for which this appeal is founded and indeed, the impugned application for review made in the trial court. However, these grounds viewed against the definition of what would constitute an error on the face of the record and the submissions in support therefore clearly indicate that the appellant holds the opinion that the trail court ought to have reached a different conclusion on the matter or that its impugned decision was erroneous. **[15]** Such matters would involve a long process of reasoning, hence suitable for an appeal rather than review which is generally limited in scope. Such process cannot be treated as an error apparent on the face of the record to justify exercise of discretion in favour of the applicant/appellant. It was held in the case of **Rep. Vs Advocates Disciplinary Tribunal Exparte Apollo Mboya (2019)eKLR** that an erroneous order or decision cannot be corrected in the guise of exercise of the power of review. **[16]** It would therefore fellow that the present appeal is devoid of merit and is hereby dismissed with costs to the respondent and directions that the primary lower court file be remitted back to the trial court to progress from where it stopped. Ordered accordingly. [Dated, delivered, this **11TH** day of **JUNE, 2026]** ­­­­\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **HON. J.R. KARANJAH** **JUDGE**