High Court 19584 of 2025

3. She asserted that the said orders were not in the best interest of the deceased’s estate as the same had caused anxiety amongst the beneficiaries. She therefore urged this court to review the orders of the said Trial Court. 4. She did not file any Written Submissions. The Ruling herein is therefore based on her affidavit evidence which she relied upon in its entirety. Legal Analysis 5. Notably, the review of decisions of a Probate court is governed by Rule 63 of the Probate and Administration Rules, which provides as follows:“ Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules (1) 6. Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.” Any party who was seeking review of orders, in a probate and succession matter, was therefore bound by the provisions of Order 45 of the Civil Procedure Rules which states as follows: “ 1. (1) 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 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.” 7. The said Order 45 of the Civil Procedure Rules provides for three (3) instances when an order for review could be sought. To be successful, the applicant was required to demonstrate that there had been 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. Secondly, the applicant was required to demonstrate that there has been some mistake or error apparent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19584/eng@2025-05-30 2

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on the face of the record. The third ground for review was worded broadly. In this regard, an applicant could demonstrate any other sufficient reason. 8. The relationship of Rule 63 of the Probate and Administration Rules and Order 45 of the Civil Procedure Rules was restated in the case of John Mundia Njoroge & 9 Others v Cecilia Muthoni Njoroge & Another [2016] eKLR where the court therein held that Order 45 of the Civil Procedure Rules, 2010 was imported into succession practice by Rule 63 of the Probate and Administration Rules. 9. There was nothing in the Applicant’s Chamber Summons application that showed that there was discovery of new and important matter of evidence, or that there was a mistake or error apparent on the face of the record, or that there was sufficient reason for this court to review the orders of Trial lower court. All the grounds for review were disjunctive and not conjunctive but the Applicant did not demonstrate that any of the grounds existed therein. 10. Having said so, it was clear from Order 45 of the Civil Procedure Rules that a court could only review its orders but not those of a court below or above it. If the Applicant was aggrieved by the orders of the Trial Court, she ought to have sought a review of the orders in the Trial Court for it to ascertain if she had demonstrated the three (3) grounds for seeking a review. The other alternative was for her to appeal the order of the Trial Court that disallowed the said Summons for Confirmation of Grant to this court. 11. As what was before this court was not an appeal, it was evident that the Applicant had filed the present Chamber Summons application in the wrong forum and the same could not be sustained herein. Disposition 12. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Chamber Summons application dated 16th May 2017 and filed on 17th May 2017 was not merited and the same be and is hereby dismissed. There will be no order as to costs as this was an ex parte application. 13. It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 30TH DAY OF MAY 2025 J. KAMAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19584/eng@2025-05-30 3

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