Albert Farar Maoga v Patrick Lutwama Fondo & 3 others

this error apparent on the face of the record is corrected before a new Grant of Probate is issued to the Administrators; and c. That the costs of this application be provided for. 2. The application is premised on the grounds stated in the body of the Motion as well as in the supporting affidavit of Patrick Lutwama Fondo, sworn on 20th March 2025. In the said affidavit Mr Fondo stated that upon the perusal of this Court’s ruling delivered on 2nd August 2024 the applicants discovered that there was an apparent error on the face of the record as the court held as follows: that there was a subdivision of the estate of the deceased which is not correct; that the 1st applicant was involved in the subdivision and sale of the land belonging to the deceased which is not correct; that a fresh grant of probate was issued to Sarah Elkana Musoki and Nathan Lutwama Haindi yet it was Sarah Elkana Musoki who unprocedurally sold part of the deceased’s estate hence she does not qualify to be an administrator of the estate of the deceased as seen in the sale agreement attached to the supporting affidavit by the 1st applicant marked as “PLF1”; and that there is a mix up of the names of the applicants in the ruling where court ordered that Nathan Lutwama Haindi Chibungu, instead of Thomas Lutwama Haindi Chibungu, who is the 2nd applicant herein do register a family trust in the property as per the will of the deceased. 3. He also referred to the sketch map contained in the site visit report and stated that the land adjoining the deceased’s land does not form part of the deceased's land as it is government land which was later converted into a settlement scheme under Ziwa La Ngómbe Settlement Scheme, where he had his portion, which he later sold to a third party. Therefore, it is not true that he subdivided and sold part of the deceased’s estate, and the same should be corrected for the record to reflect the proper position. 4. He further stated that it was Sarah Elkana Musoki who unprocedurally sold part of the deceased’s estate to a third party, which makes her unqualified to be an administrator. He urged the court to vary its order regarding Sarah’s appointment and appoint a different person, as he is not ready to serve as an administrator. 5. Mr Fondo deposed that it was Thomas Lutwama Haindi Chibungu who was supposed to have been appointed as an administrator and not Nathan Matano Lutwama. Therefore, the same ought to be corrected. 6. He urged the court to correct the error before a new grant is issued. 7. In response, Sarah Musoki filed a replying affidavit sworn on 1st April 2025. She termed the application as defective, bad in law, and an abuse of court process, and one which should be dismissed with costs. 8. She stated that no sufficient reason was given as to why Nathan, who is one of the beneficiaries, should be removed or substituted as an administrator, and /or her removal as an administrator. Ms Musoki contended that the issues raised by the applicants do not amount to an error apparent on the face of the record, new evidence, or sufficient grounds to warrant orders for review. She therefore urged the court to dismiss the application with costs. 9. The applicants filed a supplementary affidavit sworn on 28th May 2025, by Patrick Lutwama Fondo, who reiterated the contents of his supporting affidavit. 10. The application was canvassed by way of written submissions. I shall set out the precis of the said submissions below. 11. The applicants, through their advocates, Mjomba Mwawasi &Company Advocates, filed written submissions dated 29th May 2025. Counsel submitted on four issues, namely: whether the firm of https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17284/eng@2024-09-26 2

page 2 of 5

Mjomba Mwawasi &Company Advocates is properly on record; whether the application dated 20th March 2025, is fatally defective for failing to quote the proper provisions of the law; whether the application as filed is merited; and who bears the costs. 12. On the first issue, counsel submitted that the firm is properly on record as it filed a memorandum of appearance dated 20th March 2025. 13. On the second issue, counsel relied on Article 159(2)(d) and 259(1)(b) of the constitution and submitted that failure to quote the relevant section of the law in an application does not make such an application defective, as the court is under an obligation to dispense substantive justice without undue regard to procedural technicalities. 14. On the third issue, counsel reiterated the applicant’s position and submitted that the application is merited and urged the court to allow the application as prayed. 15. On the fourth issue, counsel submitted that costs follow the event. He therefore urged the court to allow the application with costs. 16. On the other hand, the respondent, through her advocates Otieno Otwere &Associates Advocates, filed written submissions dated 4th July 2025. Counsel submitted that the firm of Mjomba Mwawasi & Company Advocates is not properly on record, as it did not seek leave of the court nor file a consent from the previous advocates, which offends the rules of civil procedure. 17. Counsel further submitted that the application herein has not laid any basis to warrant the issuance of review orders. Therefore, the application lacks merit and should be dismissed with costs. 18. I have read the application, the affidavit in support thereof, and the annexures, as well as the responses thereto. I have also considered the submissions of the parties. In my view, the issue for determination is whether the court should review its orders 19. Before analysing the application and determining if it has merits, I must set out the relevant statutory provisions. Section 80 of the Civil Procedure Act provides as follows:“ Any person who considers himself aggrieved:- 20. (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of the judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.” The above statutory provision is given effect by Order 45 Rule 1(1) and (2) of the Civil Procedure Rules 2010, which provides that:a. Any person considering himself aggrieved— a. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or b. 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 or error apparent on the face of the record, or for any other sufficient reason, desires to obtain https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17284/eng@2024-09-26 3

page 3 of 5

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. b. 21. 22. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review. What can be distilled from the foregoing is that a review of the decision of the court may be made on the following grounds: (a) discovery of new and important evidence which was not within the knowledge of the applicant or could not be produced at the time the orders were passed; (b) on account of a mistake or error apparent on the face of the record; or (c) for any other sufficient reason. Why is the review jurisdiction necessary? The Court of Appeal in the case of Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] KECA 872 (KLR) had this to say: “ The basic philosophy inherent in the concept of review is acceptance of human fallibility and acknowledgement of frailties of human nature and sometimes possibility of perversion that may lead to miscarriage of justice. In some jurisdictions, courts have felt the need to cull out such power in order to overcome abuse of process of the court or miscarriage of justice. In the High Court, both the Civil Procedure Act in section 80 and the Civil Procedure Rules in Order 45 rule 1 confer on the court the power to review. Rule 1 of Order 45 shows the circumstances in which such review would be considered range from discovery of new and important matter or mistake or error apparent on the face of the record or any other sufficient reason, but section 80 gives the High Court greater amplitude for review.” 23. In the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] KECA 894 (KLR), the Court of Appeal pronounced itself as follows: “ Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules give the court unfettered discretion to make such an order as it thinks fit on sufficient reason being given for review of its decision. However, as it has been constantly stated, this discretion should be exercised judiciously and not capriciously.” 24. Further, the court in the case of Smartkar Enterprises & another v Mary Kemunto Ogendo [2021] KEHC 7801 (KLR) was of the opinion that: “ It is now settled that for courts to review their decision they must do so in compliance with Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Mativo J in Nasibwa Wakenya Moses v University of Nairobi & Another [2019] eKLR observed that: “Section 80 gives the power of review while Order 45 sets out the rules. The rules restrict the grounds for review. Put differently, the rules lay down the jurisdiction and scope of review. They limit it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17284/eng@2024-09-26 4

page 4 of 5

or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay. ….. A review is permissible on the grounds of discovery by the applicant of some new and important matter or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order was passed. The underlying object of this provision is neither to enable the court to write a second Judgment nor to give a second innings to the party who has lost the case because of his negligence or indifference. Therefore, a party seeking a review must show that there was no remiss on his part in adducing all possible evidence at the trial.” 25. The applicants’ argument in this matter is that there is an error apparent on the face of the record. Is that the case? 26. In re Estate of Simoto Omwenje Isaka (Deceased) [2020] KEHC 1641 (KLR) the court stated that: “ From the above, it is clear that the error the subject of the application ought to be so glaring that there can possibly be no debate about it. An error which has to be established by a longdrawn out process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.” 27. It is my view that the issues being raised in the application herein do not meet the threshold for review or the ground of error apparent on the face of the record. What they say is an error on the face of the record is not obvious; rather, it requires deep analysis of contested facts. It is also my view that the applicants are asking the court to sit in an appeal against its own decision. That is not possible. 28. The upshot of the foregoing is that it is my finding that the application herein lacks merit. The same is dismissed. 29. In view of the nature of the matter, the parties will bear their own costs. 30. It is ordered. DATED AND SIGNED IN MOMBASA, THIS 26TH DAY OF SEPTEMBER, 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of:Mr Mwawasi, for the Applicants; Mr Ajigo, holding brief for Mr Otwere, for the Respondent; Arthur – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17284/eng@2024-09-26 5

page 5 of 5