High Court 19716 of 2025

f. That the Rectified Certificate of Confirmation of Grant be further reviewed to indicate that the late RWM’s share of the deceased’s Estate devolves to her named beneficiaries: IKN, IWN, and EKN, jointly and to reflect distribution of deceased’s properties/estate. 2. The Application is based on the grounds as set out on its face and the Supporting Affidavit of AMK sworn on the instant date. The Applicant has stated that Grant of Letters of Administration was issued on 18th December, 2017 to AMK and RWM. The Grant was later confirmed on 21st July, 2020. 3. The Applicant has stated that his Co-Administrator, RWM passed on and there is need for issuance of fresh Grant in his sole name to enable him proceed with administration and management of the deceased’s Estate. He also avers that there is thus need for review of the said Grant to remove the share of RWM and replace it with her beneficiaries being IKN, IWN and EKN jointly. 4. The Applicant also states that there are some properties which had been left out such as land Title Number Ruiru East/Juja East Block 2/T.XXXX, Kambaa Plot 5X (Githunguri) and 5000 shares in Kambaa Tea factory both of which belonged to the deceased and has thus urged for them to be included in the schedule of assets and proposed Mode of Distribution, and for him to have absolute interest over them. 5. The Applicant has further urged the court to rectify the parcel of land known as L.R No. 1XXX/74 to read plot 17 being 1.212 Ha of L.R No. 1XXX/74. He has averred that all the beneficiaries agreed and have filed a Consent to review the Grant dated 28th September, 2021. Analysis and Determination. 6. In this matter, the Applicant has filed an application for Review of Grant dated 13th June, 2025, which is an application governed by Order 45 of the Civil Procedure Rules, which provision provide for the grounds for review applications under the Civil Procedure Rules. 7. Order 45 of the Civil Procedure Rules set out the rules on review of Judgments, Decree or Orders. It states:[45, Rule 1.] Application for review of decree or order. 1. 8. (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. Section 80 of the Civil Procedure Act gives the power of review to the court in the following terms:80. Review Any person who considers himself aggrieved— a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19716/eng@2025-11-13 2

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b. 9. by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. It is these rules that lay down the jurisdiction and scope of review limiting it to three (3) limps:a. Discovery of new and important matter or evidence upon exercise of due diligence and was not within the knowledge of Applicant or could not be produced by Applicant at time of order or decree. b. A mistake/error apparent on the face of the record : or, c. Any other sufficient reason. And whether the ground, the application has to be made before a Judge who passed the Order or Decree and without unreasonable delay. 10. Rule 40 of the Probate and Administration Rules in providing for procedures for amending or withdrawing a previously filed application for Grant of Representation as follows:40. Application for confirmation of grant 1. Where the holder of a grant which has not been confirmed seeks confirmation of the grant he shall apply for such confirmation by summons in Form 108 in the cause in which the grant was issued, supported by an affidavit in Form 8 or 9 exhibiting the grant together with an estate duty compliance certificate or other satisfactory evidence that no estate duty is payable and setting out the full names of the deceased person to whose estate the grant relates, and he shall satisfy the court that no application under Part III of the Act is pending. 2. An application for confirmation by virtue of section 71(3) of the Act shall be by summons in Form 109 in the cause and the applicant shall in addition to the requirements of subrule (1) satisfy the court by affidavit in Form 18 that there is in existence no dependant of the deceased and that it is expedient in all the circumstances of the case that the grant be confirmed before the expiration of six months from its date of making. 3. Save in the case of whole or partial intestacy or where the application is brought by virtue of section 71(3) of the Act, there shall be filed with the summons an affidavit containing the following information and particulars so far as known to the Applicant — a. the names, ages and addresses of the children of the deceased by whom he was survived (whether or not they were being maintained by him immediately prior to his death) and of such of his parents, step-parents, grand-parents, grand-children whom he had taken into his family as his own, brothers, sisters, half-brothers and half-sisters, as were living at his death and were being maintained by him immediately prior thereto with full details of the manner and extent and for what period they were being or had been so maintained; b. in the case of a male deceased, his wife or wives or former wife or wives living at his death and, in the case of a female deceased, her surviving husband if he was being maintained by her immediately prior to her death with full details https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19716/eng@2025-11-13 3

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of the manner and extent and for what period he was being or had been so maintained. 11. 4. Where the deceased has died wholly or partially intestate the applicant shall satisfy the court that the identification and shares of all persons beneficially entitled to the estate have been ascertained and determined. 5. Where it appears to the principal registrar that an application has been made in any registry for the confirmation of a grant to the estate of a deceased in regard to which a caveat has been entered pursuant to rule 15 and is subsisting, the principal registrar shall send a notice in Form 111 to the caveator warning him of the making of the application and notifying him that if he wishes to object to the confirmation of the grant he must file in duplicate an affidavit of protest in Form 10 in the principal registry within fifteen days (or such longer period as the registry for reasons to be recorded may allow) from the receipt of the notice, in default of which the caveat shall cease to have effect in regard to the confirmation of the grant. 6. Any person wishing to object to the proposed confirmation of a grant shall file in the cause in duplicate at the principal registry an affidavit of protest in Form 10 against such confirmation stating the grounds of his objection. 7. The registrar shall without delay forward to the applicant a copy of each protest filed in the cause under subrule (5) or (6). 8. Where no affidavit of protest has been filed the summons and affidavit shall without delay be placed by the registrar before the court by which the grant was issued which may, on receipt of the consent in writing in Form 37 of all dependants or other persons who may be beneficially entitled, allow the application without the attendance of any person; but where an affidavit of protest has been filed or any of the persons beneficially entitled has not consented in writing the court shall order that the matter be set down as soon as may be for directions in chambers on notice in Form 74 to the applicant, the protester and to such other persons as the court thinks fit. 9. In giving directions the magistrate’s court may in a case before it either order that the application for confirmation should proceed in that court, or at the request of any party or of its own motion order that it be transferred to the High Court and give all necessary consequential directions in that behalf to enable the application to be dealt with by the High Court. Section 73 of the Probate and Administration Rules provides for inherent of powers of court to make necessary orders for the ends of justice or to prevent abuse of court process thus:[73]Saving of inherent powers of court “ Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court”. 12. Rule 63 of the Probate and Administration Rules has adopted procedural rules, from the Civil Procedure Rules and High Court (Practice and Procedure) Rules to guide the proceedings in Probate matters where the Law of Succession Act and its Rules are silent or are not applicable. The Rule provides that:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19716/eng@2025-11-13 4

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[63 [Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules 1. 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 Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (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. 2. Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules. 13. In the instant application, the Applicant has clearly demonstrated that the need for review has arisen from the new developments following the demise of one of the Administrators of the Estate of the deceased, the omission of some of the properties belonging to the Estate of the deceased from the Grant which ought to have been included, and error on the face of the record being the mis-description of a property which has been indicated as L.R. No. 1XXX/74 instead of Plot 17 being 1.212 HA of L.R. 1XXX/74. 14. The Applicant has averred and confirmed that all the beneficiaries have consented to the review of the Grant on the grounds presented and the court is satisfied that the due procedure has been followed. 15. Upon analysing the application and the grounds upon which the same is premised, I find the application is properly before court having been brought under Order 1A, 1B, 3A and 45 of the Civil Procedure Rules which have been imported into the Law of Succession by virtue of Section 73 of the Law of Succession and Rules 49 and 63 of the Probate and Administration Rules. Therefore, this Court is satisfied that the Applicant has followed due process in bringing the application before court. 16. An appreciation of the reasons advanced by the Applicant, this Court finds that one of the Administrators has been confirmed dead, there are properties which were left out and need to be included in the Grant and there is a property which has been mis-described and thus need to be rectified, is a clear reflection of discovery of new and or important evidence and a mistake or error apparent on the face of the record, which aligns with the requirements set out under Order 45 Rule 1 of the Civil Procedure Rules. And although the Letters of Administration Intestate issued on 18th December, 2017 was confirmed and Certificate thereof issued on 28th September, 2021 before another Judge, who is no longer at this court and would not be practical, reasonable and or economically viable to have this application taken to the said Judge for determination. This being a High Court with jurisdiction to handle the matter, which from the mature and circumstances thereof has jurisdiction to determine the application by virtue of its inherent powers under the oxygen rule. 17. In conclusion, it is This Court’s considered opinion that it would be in the interest of justice to exercise its discretion and find that the Applicant has demonstrated and satisfied the threshold set out by the law on review to warrant issuance of orders being sought. Accordingly, the notice of Motion application dated 13th June, 2025 is meritable and is hereby allowed with the following orders issuing:a. That following the demise of Administrator, RWM, the Grant of Letters of Administration dated 18th December, 2017 issued to AMK and RWM be and is hereby nullified. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19716/eng@2025-11-13 5

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b. A fresh Grant of Letters of Administration to be issued to AMK as a Sole Adminstrator of the Estate of PMM alias PJM alias PJM (Deceased) forwith. c. The Certificate of Confirmation of Grant dated 21st July, 2020 and rectified on 28th September, 2021 to be further reviewed and include the property Title No.Ruiru East/Juja East Block 2/ T.XXXX, Kambaa plot No.57 (Githunguri) and 5000 Shares in Kambaa Tea Factory as part of the Deceased Estate. d. The Certificate of Confirmation of Grant dated 20th July, 2020 and rectified on 28th September, 2021 be further rectified for property Title No.Ruiru East/Juja East Block 2/T.XXXX, to PKM of ID No.4XXXXX9 and Kambaa Plot No.5X (Githunguri) and 5000 Shares in Kambaa Tea Factory to AMK of ID No.5XXXXX64. e. The Certificate of Confirmation of Grant dated 20th July, 2020 and rectified on 28th September, 2021 be further reviewed to reflect the asset described as LR. No.1XXX/74 to read as Plot No.17 being 1212 Hectares of LR. No.1XXX/74. f. The Certificate of Confirmation of Grant dated 20th July 2020 and rectified on 28th September, 2021 be further reviwed to indicate the late RWM’s share of the deceased’s Estate to devolve to her named beneficiaries IKN, IWN and EKN jointly and distribution of the deceased’s properties/estate as per the schedule set out at Paragraph 13 of the Supporting Affidavit dated 13th June, 2025. g. Being a family matter, costs to be in the cause. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 13TH DAY OF NOVEMBER , 2025. D. O. CHEPKWONY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19716/eng@2025-11-13 6

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