Awinja & 2 others v Awinja & 2 others (Environment and Land Appeal E008 of 2022) [2026] KEELC 1644 (KLR)
The bottom line
#A Kenyan court reopened its own land ruling after a probate court annulled the Will the case was decided on, showing new probate outcomes can justify review.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants are entitled to an order of review of the judgment delivered on 18th January 2024
- 2.Whether execution of the decree and warrants of arrest should be stayed
Key legal issues
#Grounds for review under section 80 CPA and Order 45
The annulment of the Will by the Probate and Administration Court after judgment constituted new and important matter and sufficient reason for review
The trial court and the appellate court had relied on the Will as part of the evidence. The Probate and Administration Court, which has jurisdiction to test the validity of Wills, later found the Will invalid and annulled it. That ruling post-dated both judgments and could not have been accessed with due diligence, so the applicants demonstrated sufficient ground for review.
Functus officio objection
The court rejected the functus officio objection, holding that review jurisdiction was properly invoked on the established grounds
The 1st respondent argued the court was functus officio having determined the appeal, and relied on Kabansora Nyangera. The court nonetheless exercised review jurisdiction under section 80 CPA and Order 45, finding the post-judgment probate ruling was a new and important matter beyond the parties' diligence.
Legal principles established
#- A subsequent ruling of the Probate and Administration Court annulling a Will relied on at trial constitutes a sufficient ground for review, as such a decision could not have been accessed with due diligence at the time of judgment
- Where land was listed in a Will as property of the deceased, it is proper that the land be administered through the Succession Cause
Court orders
#- 1.The judgment of the court dated 18th January 2024 is set aside and substituted with a judgment allowing the appeal
- 2.The judgment of the trial court is set aside and substituted with a judgment dismissing the suit
- 3.As the contest is between siblings, each party shall bear its own costs of the appeal and of the court below
- 4.Each party to bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Vihiga Magistrate's Court (MCELC)
- Vihiga MCELC No. 50 of 2020
- Jurisdiction invoked
- Article 40 of the Constitution of Kenya 2010; sections 1A, 1B, 3A and 79G of the Civil Procedure Act; Order 42 Rule 6 and Order 50 Rules 1 and 4 of the Civil Procedure Rules; section 80 CPA and Order 45 (review)
Relief refused
#Stay of execution and warrant of arrest pending inter partes hearing and further execution
The substantive relief granted was review; the judgment sought to be executed was itself set aside, rendering the stay request unnecessary
Costs
Each party to bear its own costs of the application; and in the substituted judgment, each party shall bear its own costs of the appeal and of the court below.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The judgment of this court dated 18th January 2024 is therefore hereby set aside and substituted with a judgment allowing the appeal
The judgment of the trial court is set aside and substituted with a judgment dismissing the suit.
As the contest is between siblings, each party shall bear its own costs of the appeal and of the court below.
The Probate and Administration Court, which has jurisdiction to test the validity of Wills of deceased persons, has since tested the Will, found it invalid, and annulled it.
No amount of diligence by the appellants could have made them access the ruling as the same had not been rendered at the time the judgment sought to be reviewed was made.
Issues in the judgment
#Judgment records a similar application as 'dismissed on 14th May 2023' which precedes the 18th January 2024 judgment it refers to; apparent date inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Awinja & 2 others v Awinja & 2 others (Environment and Land Appeal E008 of 2022) [2026] KEELC 1644 (KLR)", Case Analysis (2026). Vihiga MCELC Appeal (Judgment dated 18th January 2024; Notice of Motion dated 20th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1644/eng@2026-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.