Ggnn v Fwk

6. Regarding the other properties, she claims they were acquired during the marriage but were not properly factored into the divisible estate. 7. She seeks an order that these properties be declared matrimonial property, and that the court recompute the matrimonial estate and vary the distributive orders (including the 60:40 apportionment) accordingly. 8. The application is brought under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, among other provisions, and the Applicant argues that unless the error is corrected, the valuation and distribution process will proceed on an incomplete and unjust basis. 9. In the supporting affidavit, sworn by the applicant, she explains that she is seeking a review of a judgment delivered by the High Court at Voi on 22 December 2025. 10. She states that after reading the judgment, she noticed an evident and material error on the face of the record concerning the chronology and categorization of certain properties, which led to the exclusion of assets that were actually acquired or registered during the subsistence of her marriage to the respondent, FWK . 11. She notes that although the court found the presumed marriage ran from about August 2015 until the parties separated in 2019, it nevertheless excluded two properties, namely Land Title Number Voi/ Ndara "A"/3380 and Land Title Number Voi/Ndara "A"/3514, on the ground that they were premarital acquisitions made in 2013. 12. She points out that the documentary record, including title documents and official searches, shows that the titles for these properties were issued during the marriage: the first in August 2019 and the second in January 2019. 13. She argues that both properties therefore fall within the marriage period as found by the court and ought not to have been excluded without reconciling the registration chronology. 14. She further believes that the court did not properly factor in another property, Taita Taveta Scheme Phase 1/1165 and Mbololo/Tausa/5178-5209 (32 plots), whose acquisition date falls squarely within the subsistence of the marriage. 15. She emphasises that her application is not an appeal or a request to re-hear the whole case, but simply to correct an error apparent on the face of the record, which is ascertainable from the court record and registration instruments. 16. She contends that the error is material because the court’s final orders on valuation and distribution were based on a defined pool of assets, and excluding properties acquired or registered during the marriage unjustly diminishes the divisible estate and distorts the eventual apportionment. 17. She states that she has been advised by her advocates that the court has the power to review its judgment under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules where there is an error apparent on the face of the record. 18. She adds that after delivery of the judgment, the court directed the parties to jointly appoint a valuer within a specified period, and unless the error is corrected before irreversible steps are taken, the valuation and implementation process will proceed on an incomplete and erroneous property pool, causing her prejudice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5654/eng@2026-04-29 2

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19. She asserts that the application has been made promptly and without unreasonable delay upon discovery of the error and obtaining the relevant registration documents, and that no prejudice will be caused to the respondent by the correction. 20. She also annexes a copy of the decree in the divorce proceedings confirming dissolution of the union for context. 21. The Respondent, FWK , swore a replying affidavit opposing the Applicant’s Notice of Motion dated 20th February 2026, which sought review of the judgment delivered on 22nd December 2025. 22. He stated that he was competent to swear the affidavit and had read the Applicant’s application and supporting affidavit, opposing them entirely. 23. He pointed out that the Applicant had already filed a Notice of Appeal on 24th December 2025, expressing dissatisfaction with the same judgment, and argued that having elected to pursue an appeal, she could not simultaneously seek a review before the same court. 24. He further contended that the Applicant had not demonstrated any of the grounds required for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 25. The Respondent explained that the issue of acquisition of the disputed properties had been fully addressed during the hearing and determined in the judgment. 26. He maintained that the court had found several properties were acquired by him before the parties began cohabiting in August 2015. 27. He stated that properties known as Voi/Ndara "A"/3380 and Voi/Ndara "A"/3514 were acquired in 2013, long before the alleged matrimonial relationship. 28. He noted that in his earlier List of Documents, he had produced official records from the Land Demarcation Officer showing that Voi/Ndara "A"/3380 was demarcated on 20th July 2013 and Voi/ Ndara "A"/3514 on 19th December 2013, with his name recorded as owner and bearing official stamp and signature. 29. Since these parcels were within a land adjudication area, ownership rights arose during the demarcation and adjudication process before formal registration, meaning he acquired beneficial ownership in 2013, and the subsequent issuance of title deeds in 2019 was merely formal registration. 30. The Respondent also recalled that the Applicant had testified that around 2013 she was residing in the United Kingdom pursuing her studies, and she produced no evidence of financial or other contribution to the acquisition of those parcels. 31. He asserted that the court correctly concluded those were pre-marital assets. He argued that the matters raised in the Applicant’s application related to the court’s evaluation of evidence regarding the chronology of acquisition, which did not constitute an error apparent on the face of the record but rather a challenge to the court’s findings, and such issues could only be properly addressed through an appeal, not a review. 32. Regarding specific properties, the Respondent denied the Applicant’s allegation that the court failed to consider Taita Taveta Scheme Phase 1/1165, stating that the judgment included that property among the matrimonial estate in which the Applicant was awarded a 40% beneficial interest. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5654/eng@2026-04-29 3

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33. Similarly, he said the allegation about Mbololo/Tausa/5178-5209 (32 plots) was incorrect, as that property was also recognised in the judgment as part of the matrimonial estate with the same 40% share awarded to her. 34. He claimed the Applicant had mischaracterised the contents of the judgment. 35. The Respondent concluded that the court was functus officio and could not sit on its own appeal. 36. He stated that the Applicant’s dissatisfaction lay in an appeal, that everything she was saying now had already been told to the court during trial so there was nothing new, and that the application merely sought to re-litigate already determined issues. 37. He therefore asked the court to dismiss the Applicant’s application with costs as being just and fair. 38. The parties filed written submissions as follow;The Applicant, GGNN , submitted that she seeks a review of a High Court judgment delivered on 22nd December 2025, which excluded certain properties from the matrimonial estate on the basis that they were the Respondent’s pre-marital assets. 39. She argues that the exclusion stems from an error apparent on the face of the record, specifically a chronological inconsistency: the court found the properties were acquired in 2013, but the title documents show they were issued in January and August 2019, during the subsistence of the marriage. Relying on Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, the Applicant contends that this error directly afiects the composition of the matrimonial estate and should be corrected without a rehearing. 40. She further submits that other properties acquired during the marriage were not properly factored into the distributable estate. 41. Citing case law including PNN v ZWN and SWG v FMK, she maintains that property acquired during marriage, unless obtained before the marriage, forms part of matrimonial property. 42. Finally, she prays for costs of the application, as she was compelled to move the court solely to correct an apparent error. 43. The Respondent submitted that the Applicant’s motion for review does not meet the legal threshold under Order 45 Rule 1 of the Civil Procedure Rules, as there is no new evidence, no error apparent on the face of the record, nor any other sufficient reason to warrant review. 44. The Respondent contends that the Applicant is merely challenging the court’s evaluation of evidence regarding when ownership of the disputed properties arose, which is a matter for appeal, not review. 45. Furthermore, the Applicant has already filed a Notice of Appeal, and cannot simultaneously pursue both an appeal and a review. 46. The Respondent also clarifies that ownership rights over the disputed parcels arose during the 2013 land demarcation process under the Land Adjudication Act, years before the parties cohabited in 2015. 47. Additionally, the Applicant mischaracterizes the judgment, as the court did recognize other properties as part of the matrimonial estate and awarded a 40% interest. 48. The Respondent therefore prays that the application be dismissed with costs. 49. This court has carefully considered the Applicant’s Notice of Motion dated 20th February 2026, seeking a review of the judgment delivered on 22nd December 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5654/eng@2026-04-29 4

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50. The sole issue for determination is whether there exists an error apparent on the face of the record regarding the categorization of four properties. 51. The applicant argues that the court erroneously excluded Land Title Numbers Voi/Ndara "A"/3380 and Voi/Ndara "A"/3514 as pre-marital assets despite the titles being issued in 2019, during the subsistence of the marriage. 52. Conversely, the Respondent maintains that ownership was beneficially acquired during the land demarcation process in 2013, and further raises a jurisdictional objection, noting that the Applicant has already filed a Notice of Appeal against the same judgment. 53. The jurisdiction of this court to review its own decision is strictly circumscribed by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 54. These provisions allow for review only upon the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge; or on account of some mistake or error apparent on the face of the record; or for any other sufficient reason. 55. The first hurdle to address is the Respondent’s argument regarding the simultaneous filing of an appeal and a review. 56. While Order 45 Rule 1 generally allows a party "aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred" to apply for review, Kenyan jurisprudence has clarified the "preferred" status. 57. The mere filing of a Notice of Appeal does not necessarily "prefer" an appeal in a manner that ousts the court’s jurisdiction for review, particularly where the review is sought on the narrow ground of a clear clerical or factual slip. 58. However, the court must be wary of becoming an appellate court over its own decisions. 59. Regarding the merits of the properties Voi/Ndara "A"/3380 and Voi/Ndara "A"/3514, the Applicant points to the registration dates in 2019. 60. However, the Respondent has provided evidence of demarcation in 2013 under the Land Adjudication Act. 61. In the Kenyan legal context, specifically under the Land Adjudication Act, rights in land are determined and vested during the adjudication and demarcation process. 62. The subsequent issuance of a title deed under the Land Registration Act is a formalization of a preexisting right. 63. As emphasized in PNN v ZWN [2017] eKLR, matrimonial property is defined by the timing of acquisition of the interest, not necessarily the date on the certificate of title. 64. The court’s initial finding that these were pre-marital assets based on 2013 demarcation records is a matter of judicial appreciation of evidence. 65. If the court preferred the demarcation date over the registration date, that is a find of fact. 66. A review cannot be used to challenge a court's conclusion on the weight of evidence; such a challenge is the proper province of an appeal. 67. Furthermore, the Applicant’s claims regarding Taita Taveta Scheme Phase 1/1165 and the Mbololo/ Tausa plots appear to be based on a misapprehension of the judgment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5654/eng@2026-04-29 5

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68. A perusal of the record confirms that these properties were indeed included in the matrimonial pool and subjected to the 60:40 distributive ratio. 69. Therefore, there is no "error" to correct in that regard, as the court has already granted the relief she claims was omitted. 70. The Applicant’s motion ultimately invites the court to re-examine its evidentiary evaluation of when "acquisition" occurred. 71. This is not a "mechanical" error or a "factual slip" but a substantive legal dispute. 72. This court finds that the Applicant is seeking a second bite at the cherry by re-litigating the chronology of acquisition. 73. Such dissatisfaction must be vented in the Court of Appeal. 74. Consequently, this court finds that the application does not meet the threshold for review under Order 45. 75. The Notice of Motion dated 20th February 2026 is hereby dismissed. 76. Considering the matrimonial nature of the dispute and the ongoing valuation process, each party shall bear their own costs of this application. 77. Orders to issue accordingly. DATED, SIGNED AND DELIVERED THIS 29TH DAY OF APRIL 2026 IN OPEN COURT AT VOI HIGH COURT. ASENATH ONGERI JUDGE In the presence of:Court Assistant: Millicent/Eghwa ………………………………………………..for the Applicant ………………………………………………..for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5654/eng@2026-04-29 6

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