High Court 1740 of 2026

6. It is further averred that the beneficiaries have engaged a Surveyor who has drawn a mutation map, (a copy of which has been annexed to the supporting affidavit) which reflect the desired mode of distribution. 7. Upon considering the application, the court directed that the beneficiaries attend court for examination and on 15th October, 2025, they were examined although one beneficiary was absent and the other did not have his ID card, consequently, the examination proceeded on 10th November, 2025. 8. In considering the application, I note that the main prayer is for court to ‘review, set aside and/or vacate” the ruling delivered on 22nd March, 2017 regarding distribution of the estate of the deceased. 9. In that regard, pursuant to Rule 63 of the Probate and Administration Rules, a court can review, vary or revoke an order confirming the grant of representation. The subject Rule states as follows; “ 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) 10. Pursuant to the afore, Rule 63 incorporates the provisions of Order 45 of the Civil Procedure Rules 2010 which states that: (1) (2) 11. 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”. 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. 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. Consequently, for the application herein to succeed, the applicants must meet the threshold under Order 45 for review of an order. The key aspects of the Order 45 are: a. Discovery of New Evidence: The applicant must show they discovered new, crucial evidence that was not within their knowledge or could not be produced at the time of the order, despite exercising due diligence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1740/eng@2026-02-18 2

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b. Error Apparent on the Face of Record: The mistake must be obvious, self-evident, and not require a long-drawn-out reasoning process or re-evaluation of evidence. c. "Other Sufficient Reason": This is interpreted ejusdem generis (similar to the first two grounds), meaning it must be analogous to a discovery of new evidence or an error of law on the record. d. No Unreasonable Delay: The application must be filed promptly. Delays of a few months (e.g., 4 months) have been deemed unreasonable, and even a delay of a few days requires explanation. 12. To revert back to this matter, I find that the reason advanced for the order of review is that KETRACO has compulsorily acquired 0.3899 hectares from title Kijabe/Kijabe Block 1/3597. 13. The question is, have the applicants provided evidence in proof of such acquisition. In the instant matter, the applicants have annexed to the affidavit in support of the application the following documents; a. A copy of grant of Letters of Administration Intestate dated 7th April, 2016, marked ‘LRG & BNN 1’. b. A copy of a certificate of confirmation of grant dated 22nd March, 2017 marked ERG & BNN 2. c. A copy of a letter of consent executed by all beneficiaries marked ‘ERG & BNN 3’ and d. A copy of mutation map marked ‘ERG & BNN 4’. 14. From the afore documents, there is no shred of evidence of acquisition of the subject land yet that is the basis of the application. 15. In that case, the application cannot be granted as prayed. The costs thereof be in the cause. It is so ordered. DATED, DELIVERED AND SIGNED ON THIS 18TH DAY OF FEBRUARY, 2026. GRACE L. NZIOKA JUDGE In the presence of; Ms Omondi for the Applicant Ms Hannah: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1740/eng@2026-02-18 3

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