https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7553

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **SUCCESSION CAUSE NO. 500 of 1997** **IN THE MATTER OF THE ESTATE OF THE LATE** **KIBOWEN KOMEN (DECEASED)** 1. **ZAKIA MOHAMMED KOMEN** 2. **AZIZ MOHAMMED KOMEN** 3. **JAMILA CHELANGAT MIYANJI** 4. **FOZIA CHEMUTAI KOMEN** 5. **SOPHIAH JEPKOSKEI TIPIS** 6. **SARAH JEPKOECH MOHAMED……………………………APPLICANTS** **AND** **MICAH BOWEN KOMEN……………………..APPLICANT/BENEFICIARY** **- VERSUS -** **PETER KIPRUTO KOMEN………….1st RESPONDENT/ADMINISTRATOR** **ABDULGHANI MOHAMED** **KOMEN ……………………………… 2nd RESPONDENT/ADMINISTRATOR** **ABRULKADIR MOHAMMED……….3rd RESPONDENT/ADMINISTRATOR** **EVAN KIPTUI KOMEN………………4th RESPONDENT/ADMINISTRATOR** **RULING** 1. Once again before me are two (2) post judgment summons, the 1st the 1st Application is dated 11th February 2025, in which the Applicants self-identifying as dependants/ beneficiaries of the deceased’s estate essentially seek to set-aside the judgment dated 30th July 2010 as well as revoke the grant made on 30th May 2022 in the following seven (7) specific reliefs: 2. **SPENT** 3. **SPENT** 4. **That, the Judgment entered on** **30th July 2010 be set-aside entirety.** 5. **That, the Honourable Court be pleased to revoke and/or annul the Grant of Letters of Administration issued to the administrators hereon; PETER KIPRUTO KOMEN. ABDUL GHANI MOHAMMED KOMEN ABDUL KHADIR MOHAMMED KOMEN and EVANS KIPTUI KIMUTAI vide SUCCESSION CAUSE NO. 500 OF 1997 on 30th May 2022.** 6. **That, pending the hearing and determination of this application, an order of inhibition be registered against the titles to land parcel numbers. LR NO. 10013/4, NJORO, NAKURU MUNICIPALITY BLOCK 4/25, LR ΝΟ. 9038/36 KABARNET MUNICIPALITY, LR NO. 10684 NJORO, LR NO. 1331/2 MENENGAI FARM, LR NO. 133/2 KABARNET MUNICIPALITY, LR NO. 9413/5 Rongai commercial plot, LR NO. 10013/2, LR NO. 10013/5, LR NO. 10013/6, LR NO. 9033/3, LR NO. 9038/4, LR NO. 10013/4, PLOT NO. 18 SEGUTON 20 ACRES ZONE 58 KABARNET MUNICIPALITY and 100ACRES at KERINGET FARM inhibiting any transfer third party or any other dealing in the said properties.** 7. **That, pending the hearing and determination of this application, the Respondents herein be restricted from transferring or interfering in any way with Motor vehicle KMD 395 MERCEDES BENZ, SHARES at NAIROBI STOCK EXCHANGE, KLZ 213 PEUGEOT, KAB 556A MASSEY FERGUSON, KQZ 227 FIAT and SHARES AT EAST AFRICA BREWERIES LIMITED or any other dealing in the said properties.** 8. **That, cost of this application be in the cause.** 9. The Application is further supported by a sworn Affidavits by **Aziz Mohammed Komen** dated 12th February 2025 and 29th July 2025. 10. The 2nd Summons is by **Micah Bowen** is dated 2nd December 2025 that essentially seeks to review and vary the judgment dated 30th July 2010 in the following reliefs sought: 11. **SPENT** 12. **SPENT** 13. **That, the Honourable Court be pleased to vary the judgment dated 30.7.2010 and the orders/directions issued on 13.12.2019 sanctioning the excision and sale of 66 acres from the land parcel L.R 10684 by the administrators to offset the known liabilities of the estate and the remind shared among the widows and the children of the deceased as far as the said judgment and or order relates.** 14. **That, upon grant of prayer above, the Court be pleased to substitute it with an order that MIKA BOWEN has cleared the ascertained liabilities/debts of the estate as per the judgment dated 30.07.2010 hence no need to dispose of the 66 acres of the said land.** 15. **SPENT** 16. **That, the costs of the application be on the cause.** 17. The 2nd Summons is grounded on the sworn Affidavit by **Micah Bowen** that essentially exhibit family meeting minutes and consent to the Application on the basis that the ascertained debts as per the judgment have been settled fully hence no need to sell the 66 acres and that the order for the same needs to be reviewed accordingly. 18. The 1st Application is opposed by All the Respondents and **Micah Bowen** who all take the view that grand-children fall way too far in the line of consanguinity to claim to be dependants or beneficiaries as is provided for under the law of succession they equally take the view that the 1st - 5th Applicants are actively litigating to be recognized as dependants/beneficiaries and 6th Applicant as widow in the Nakuru Succession Cause No. E178 of 2024 the estate of **Mohammed Tanui** **Komen** - son of the deceased and beneficiary in this cause who passed away on the 2nd October 2024. 19. The Court has considered the entire bare pleadings as filed by the parties Respondents and Micah Bowen’s filed written submissions to the summons dated 11th February 2025 and no party filed written submissions on the summons dated 2nd December 2025. 20. On their part the Applicants argue that they were beneficiaries/dependants of the deceased by dint of the deceased having taken them away from their father and raised then supporting their education including sending some of them abroad for studies. They further claim that their father was cruel to them hence the action by the deceased. The further claim that they only recently came to be aware of the proceedings hence their instant Application. 21. In this case the judgment was delivered on 30th July 2010. The Applicants in the 1st Application were well aware of the instant succession of which their alleged deceased father fully participated at one point as the administrator and in fact unlawfully distributed some of the assets himself which titles were revoked by the Court. The Applicants equally admit participating in the aforesaid succession cause of their deceased father. 22. No justification is made as to why they never moved Court before the judgment or during the succession process after the grant was issued to their father. I further consider the dual contradictory position of claiming dependency simultaneously in their grandfather’s estate as well as their father’s to be akin to speaking from both sides of their mouths. Such a contradictory position is untenable in law and is akin to engaging in a lottery. I consider the delay of over sixteen (16) years after judgment to be inordinate, in the light of the express requirement by the rules which require that an application for review be made without any unreasonable delay. 23. In the case of Panalpina **(E.A.) Ltd V Ngae (1999) LLR 2370 (HCK)**, Waki J. (as he then was) held as follows: ***“First the question of delay. Order 44 rule 1 Civil Procedure Rules requires in peremptory language that an application for review be made “without unreasonable delay.” The order sought to be reviewed here was made on 23rd September 1998.*** ***The application for review was filed on 16th July 1999, about 10 months later. Plenty of water had gone under the bridge in the matter, as it were, within that period. The affidavit in support of that application made no allusion to the period expired before the application was filed and did not explain it. ……*** ***….. I think that it was erroneous to admit the application after an unexplained period of 10 months had expired and various developments had taken place in the matter”.*** 1. I further note that review of judgment must satisfy the set principles laid in **Section 80** of the **Civil Procedure Act** which grants the Court the power to make orders for review, while **Order 45** sets-out the jurisdiction and scope of review by hinging review to discovery of new and important matters or evidence, mistake or error on the face of the record and any other sufficient reason. 2. In the case of **National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR),** the Court of Appeal held as follows: - ***“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 a 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 proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”*** 1. A grandchild is not an automatic beneficiary of a deceased. He/she only becomes a beneficiary by virtue of his relationship with the deceased and can only inherit his parents share of the estate by taking their place. 2. In **Re Estate of Wahome Njoki Wakagoto [2013] eKLR,** the Court held that: - ***“Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”*** 1. It is for the above reasons and the fact that the Applicants are rightfully contesting the succession of their father in Nakuru Succession Cause No. E178 of 2024 the estate of **Mohammed Tanui Komen** where the 6th Applicant seeks to become an administrator, that I find the 1st Application dated 11th February 2025 is without merit. 2. The 2nd Application dated 18th May 2022 is without merit for the following reasons; 3. This Court was effectively rendered *functus officio* when it delivered judgment over 16 years ago multiple attempts have been made to set aside the same, Appeals have been preferred to the Court of Appeal a solo unsuccessful attempt has been made at certification to move to the Supreme Court. 4. This Court cannot review its own judgment except under exceptional circumstances discussed above. 5. This matter is *res-judicata* having been brought before this Court unsuccessfully on multiple occasions. 6. I am inclined to make the following final orders; 7. **The Summons dated 11th February 2025 is dismissed with costs to the Respondents and to Micah Bowen.** 8. **The Summons dated 2nd December 2025 is dismissed with costs to the Respondents.** It is so Ordered. **Signed, Dated and Delivered** **at Nakuru on this 20th Day of May 2026*.*** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Mohochi S. M.** **JUDGE**