Deceased Lucy Wanjiku Kyambuthi v Peter Wanjiku Kiambuthi

(ii) THAT pending inter partes hearing of this Application, this honourable court be pleased to set aside the ruing of Hon. Justice H.K. Chemitei delivered on 12th June, 2025 and all consequential orders; (iii) THAT pending the hearing and determination of this Application, proceedings in there this be matter a stay and of any consequential orders made by this honourable court on 12th June, 2025; (iv) THAT the ruling delivered on 12th May, 2025 and all consequential orders be set aside ex debito justitiae and the respondent’s Application dated 23rd May, 2025 be heard and determined on its merits; (v) THAT costs of this application be provided for. 2. The application is opposed by Lucy Wanjiku Kiambuthi, who filed a replying affidavit dated 24th July, 2025. 3. The background of the matter is that a Grant of Letters of Administration with Written Will in this matter was issued on 22nd April, 1997, and confirmed on 11th July, 1997. The SUCCESSION CAUSE 99 OF 1997 RULING 2

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matter was reinstated in 2017 by an application to revoke the Grant, dated 3rd July 2017. 4. The summons challenges the validity of the Will dated 23rd August, 1994. The application is filed by Lucy Wanjiku Kiambuthi hereinafter referred to as (“the Applicant”) and Richard Njoroge Kiambuthi (deceased) against the Respondents, Peter Ngugi Kiambuthi hereinafter referred to as (“the Respondent”) and Margaret Wambui Kiambuthi (deceased), the appointed administrators. 5. The hearing commenced on 7th November, 1997, before Justice M. Muigai, who took the evidence of Lucy Wanjiku Kiambuthi and Margaret Wambui Kiambuthi (deceased) and the matter was adjourned for further hearing. The trial Court was subsequently transferred, and the matter was taken over by Justice L. Achode (as she then was). When the matter next came up on 4 th June, 2019, Counsel for the Applicants (in the summons for revocation) made an oral application that the matter start de novo (afresh) and the trial Court allowed the application. SUCCESSION CAUSE 99 OF 1997 RULING 3

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6. Subsequently, there were interlocutory applications filed and determined by the rulings delivered on 15 th October, 2021 and 4th November, 2021 by Justice Odero, who took over the matter from Justice Achode. 7. Upon the transfer of Justice Odero, the matter was placed before Justice Chemitei as Presiding Judge for directions on 22nd January, 2024. On this date, parties were granted leave to file an application on how the matter should proceed. 8. The Applicant filed an application dated 5th February, 2024, asking that the Court adopt the orders issued on the matter starting de novo. The application was opposed by the Respondent. Justice Chemitei delivered a ruling on 12th June, 2024, which is now the subject of the application before me. The ruling directed that the matter begin afresh as had been directed by Justice Achode on 4th June, 2019. The matter was allocated to this Court for hearing and determination. 9. The Respondent, in his application and submissions, argues that the Court made a determination on 12 th June, 2025 despite the existence of a pending application dated SUCCESSION CAUSE 99 OF 1997 RULING 4

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23rd May, 2025 filed by the Respondent. In the application dated 23rd May, 2025, the Respondent sought orders to set aside the order for a fresh hearing. The Respondent argues that starting afresh will prejudice his case, as the evidence of Margaret, who has since died, will be disregarded. 10. The Applicant, on the other hand, argues that the application is res judicata and incompetent for seeking to relitigate issues that have been finally determined by the Court without having preferred an appeal. 11. The application before me is anchored in Sections 1A, 1B and 3A of the Civil Procedure Act, which set out the Act’s overriding objective of providing a just, expeditious, proportionate and affordable resolution of civil disputes, and the latter empowers the Court to make any orders necessary to prevent an abuse of the judicial process or to meet the ends of justice. 12. The application is also anchored in Section 80 of the Civil Procedure Act and Order 45, Rules 1 and 3 of the Civil Procedure Rules, which grant the Court the SUCCESSION CAUSE 99 OF 1997 RULING 5

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power and the grounds upon which it can review its own decrees or orders. 13. In Republic -vs-Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, the Court set out the principles to consider in the review of its own decisions. It was observed; i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise. ii. The expression "any other sufficient reason" appearing in Order interpreted the in 45 Rule light of 1 has other to be specified grounds. iii. An error which is not self-evident and which can be discovered by reasoning cannot be apparent on face the a long treated of process as record an of error justifying exercise of power under Section 80. iv. An erroneous order/decision cannot be corrected in the guise of exercise of power of review. SUCCESSION CAUSE 99 OF 1997 RULING 6

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v. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court. vi. While considering an Application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent. vii. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier. viii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any SUCCESSION CAUSE 99 OF 1997 RULING 7

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detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record. ix. Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1. x. The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1. 14. The Respondent’s application mainly hinges on the Judge’s decision in the Ruling delivered on 12 th June, SUCCESSION CAUSE 99 OF 1997 RULING 8

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2025 which upheld the order to start afresh, even though the application dated 23rd May, 2025 was still pending. 15. The application dated 5th February, 2024, in which the Respondent had participated in and which culminated in the ruling the Respondent seeks to have set aside, sought the following reliefs; i. THAT this application be certified urgent to be heard instantly notwithstanding its service. ii. THAT leave be granted to parties to adopt the orders in this matter to commence the hearing de novo following the directions by Honorable Lady Justice Achode dated 4th July, 2019. iii. 16. Costs of the application. I have similarly perused the application dated 23 rd May, 2025. The reliefs sought are as follows; i. THAT the order issued by Honourable Lady Justice Achode on 4th July 2019 directing the matter herein to commence de novo be set aside; ii. THAT costs of this Application be provided for SUCCESSION CAUSE 99 OF 1997 RULING 9

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17. The argument presented by the Respondent that Margaret is now deceased, rendering her evidence unavailable for retrial, was articulated in the Respondent’s response to the application dated 5th February, 2024 and was similarly addressed and considered in the ruling of 12th June, 2025. 18. The application dated 23rd May, 2025 was filed on 28th May, 2025. This was three days after the attendance before court on 23rd May, 2025 where the Respondent asked the Court for leave to file their submissions to the application dated 5th February, 2024. The ruling date was set on that same date. The application dated 23 rd May, 2025 and its supporting affidavit were dated the same day he was in Court, yet he failed to seek extended leave or even notify the court that he was preparing a similar application setting out his position. 19. In summary, the Respondent took a stance in his response to the pending application that was pending ruling; despite this, he proceeded to file another application, canvassing the same arguments he had presented in his response and submissions while the first SUCCESSION CAUSE 99 OF 1997 RULING 10

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application was awaiting determination. He rephrased the reliefs sought, although they mirrored those in the first application. Currently, he is asking that the orders issued in the ruling be set aside and the proceedings stayed so that the second application can be heard. Hearing the application dated 23rd May, 2025 amounts to reviving the issue already determined by the ruling delivered on 12 th June, 2025. 20. In my view, the application dated 23 rd May, 2025 is improperly before the court and constitutes an abuse of the court process. The Respondent should have notified the court of their intention at the point the matter was being set down for ruling, so that directions could be taken for their joint determination or awaited the ruling and, if dissatisfied, seek review or appeal, rather than filing a second application to re-litigate the same issues that had been canvassed and were under consideration in an application pending a ruling. Simply put, it is like filing a lawsuit when another lawsuit on the same issues is pending determination before the Court. The High Court has jurisdiction under the provisions of Section 47 of SUCCESSION CAUSE 99 OF 1997 RULING 11

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the Law of Succession Act and Rule 73 of the Probate & Administration Rules to issue such orders and decrees as may be expedient and necessary for the ends of justice and to prevent abuse of the court process. 21. The application dated 24th June, 2025 does not meet the requisite criteria for obtaining review orders as stipulated by the legal provisions that the Respondent has anchored the application on. Upon consideration, I find no introduction of new evidence, nor is there any error on the face of the record. Additionally, no substantial justification has been presented to warrant review of the orders issued on 12th June, 2025. 22. From the foregoing, this Court makes the following final orders; i. The application dated 24th June, 2025 is hereby dismissed; ii. The application dated 23rd May, 2025 is hereby struck out; iii. Costs shall abide the outcome of the revocation of grant proceedings; SUCCESSION CAUSE 99 OF 1997 RULING 12

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iv. The matter will be scheduled for a priority hearing to expedite the hearing and determination of the proceedings seeking revocation of the grant, which has been pending since 2017. 23. Orders accordingly. DATED, DELIVERED and SIGNED at NAIROBI on this 26TH day of JUNE, 2026. ……………………… C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Mr. Banji, Advocate for Administrators Ms. Wangui, Advocate for Applicant SUCCESSION CAUSE 99 OF 1997 RULING 13

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