In the Matter of the Estate of Timotheo Gacheru (Deceased) - Review Application
The bottom line
#Waiting too long or using the wrong legal tool will likely cause your application to fail in Kenyan court.
What this practically means
#Executive summary
#Key legal issues
#Whether the orders of 29/06/2006 should be reviewed
The application for review fails; no new matter, no error apparent on the face of the record, no sufficient reason, and inordinate unexplained delay.
The court applied Order 45 grounds imported via Rule 63 of the Probate and Administration Rules. The inclusion of the daughters as beneficiaries was before the judge in 2006 and supported by consent of the administratrix and other beneficiaries, so nothing was new. The applicant also filed the review over eighteen years after the order and sought substitution of his deceased father four years after death, contrary to Order 24 rule 3.
Whether the court can revoke the grant within a review application
No. Revocation of grant is governed by different provisions and cannot be introduced through submissions in a review application.
The applicant pleaded review under Rule 63(1) of the Probate and Administration Rules. The court held a party is bound by his pleadings and cannot seek revocation of grant from the bar. Any fault with the law on substitution of a deceased administratrix is a pure point of law addressable only on appeal.
Whether married daughters can be excluded from inheritance under Kikuyu customary law
No; the Constitution outlaws gender discrimination and the court cannot issue discriminatory orders.
The applicant argued that under Kikuyu customary law married daughters do not inherit. The court held that in the current constitutional dispensation such a position is untenable, and that under Section 2(2) of the Law of Succession Act estates of persons dying before commencement may be administered in accordance with the Act, which advocates equal distribution among children.
Legal principles established
#- An erroneous conclusion of law or evidence is a ground of appeal, not a ground of review
- Discovery of new and important matter under Order 45 relates to issues of fact emerging from evidence, not issues of law
- A party cannot abandon a pleaded prayer for review and seek revocation of grant in submissions
- Estates of persons dying before commencement of the Law of Succession Act may nonetheless be administered in accordance with the Act, and courts cannot issue discriminatory orders
Court orders
#- 1.The application lacks merits and is dismissed
- 2.Costs to the respondent
- Jurisdiction invoked
- Section 47 of the Law of Succession Act; Rule 63 of the Probate and Administration Rules importing Order 45 Civil Procedure Rules (review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In the Matter of the Estate of Timotheo Gacheru (Deceased) - Review Application", Case Analysis (2019). Succession Cause (application dated 02/03/2017). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.