Sule (Suing as the legal representative of the Estate of Michael Sule Obuola - Deceased) v Hayer & 2 others

2. The Motion is premised on eight grounds set out on its face and is supported by the adavit of the Applicant, Pascal Matengo Sule, sworn on 20th January 2025 together with the annexures marked PMS/1 to PMS/8. 3. It is opposed by the 1st and 2nd Respondents through a replying adavit sworn on 4th March 2025 by Richard B. O. Onsongo, Advocate, who deposes that he has the conduct of the matter on their behalf and is duly authorised to swear the adavit. Background 4. The background to this Motion is long and, in material respects, undisputed. Michael Sule Obuola (also referred to in the record as Sule Obuola) of Kolwal Ojola, Kisumu, died intestate on 17th March 1986. He left a large family, the members of which are listed in the Form P&A 5 led in the Kisumu High Court on 10th December 1993 in Succession Cause No. 246 of 1993. 5. By an agreement dated 23rd March 1989, described in the record as a 'Plot Sale Agreement', ve persons describing themselves as the widows and a son of the deceased Kristina Achieng Sule, Teresia Ochieng Sule, Agneta Juma Sule, Gaudensia Apondi Sule and Joakim Kamori Sule purported to sell parcel West Kisumu/Ojola/1767, measuring 2.0 hectares, to the 1st and 2nd Respondents for Kshs. 50,000/ = together with an undertaking by the purchasers to construct four two-roomed permanent houses, one for each of the deceased's widows. By the same instrument the vendors conrmed that they had no interest in or claim to parcel West Kisumu/Ojola/1766. That transaction predated any grant of representation to the deceased's estate by some six years. 6. On 7th November 1995 a grant of letters of administration intestate in respect of the estate was issued to the 3rd Respondent, PAUL ONYANGO SULE, in Kisumu High Court Succession Cause No. 246 of 1993, and a certicate of conrmation of grant bearing the same date was issued by Kuloba J. The schedule to that certicate lists ten parcels of land, among them W. Kisumu/Ojola/1767. 7. It is common ground that on 14th May 1996 the High Court, by consent, revoked the grant of 7th November 1995. What followed that order is the very point on which this Motion turns, and I return to it below. 8. In 2006 the 3rd Respondent, describing himself as the administrator of the estate, instituted Kisumu High Court Civil Suit No. 63 of 2006 against the 1st and 2nd Respondents. As appears from the decree, he sought an injunction restraining the defendants from the use of plot No. 1767 Ojola pending determination of the suit, and a declaration that the sale agreement dated 23rd March 1989 was defective because the vendors of parcels 1766 and 1767 were not the rightful owners. 9. The suit came up before Mwera J (as he then was) on several occasions between 2006 and 2010. Upon a consent letter dated 15th October 2009 the suit was compromised. The decree exhibited as PMS/6 records that the suit was marked as settled on terms that: all claims by the estate of the late Michael Sule Obuola touching on parcels Kisumu/Ojola/1766 and Kisumu/Ojola/1767 were abandoned; the two parcels would remain the property of the 1st and 2nd Respondents; the estate, then represented by the 3rd Respondent as administrator, was estopped then and in future from raising any issue of defect in either title; and there would be no order as to costs. 10. Upon the establishment of this Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act, 2011, the le was transferred to this Court and renumbered ELC Case No. 374 of 2015. It is in that le, under that number, that the present Motion has been taken out. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2516/eng@2026-09-24 2

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11. Three subsequent proceedings bear directly on this Motion, and I set them out because the parties have relied heavily upon them: (a) Kisumu ELC (OS) No. E017 of 2023, Pascal Matengo Sule v Charanjit Singh Hayer, Hayer Bishan Singh & Sons Limited and Paul Onyango Sule, in which the present Applicant, suing as legal representative and next of kin of the deceased, sought relief in respect of the same two parcels. By a ruling dated and delivered on 7th March 2024, Asati J struck out that suit with costs, holding that the Applicant lacked capacity for want of a grant, that the claim was time barred under section 7 of the Limitation of Actions Act, and that it was res judicata by reason of the decree in Kisumu HCCC No. 63 of 2006. (b) Kisumu High Court Miscellaneous Succession Cause No. E001 of 2024, In re Estate of Michael Sule Obuola (Deceased) [2024] KEHC 7072 (KLR), in which the present Applicant sought revocation of the grant. By a ruling delivered on 13th June 2024, Aburili J revoked the grant issued on 14th May 1996, directed the beneciaries to make a fresh petition for letters of administration intestate, and issued a temporary injunction restraining the respondents in that cause and any other person from intermeddling with the estate or dealing with any of the suit properties pending fresh succession and distribution. Critically for present purposes, the learned Judge declined to set aside the sale or transfer of West Kisumu/Ojola/1767, holding that although the sale amounted to an act of intermeddling, a court of competent jurisdiction had already pronounced itself on title and ownership and that she could not sit on appeal over a decision of a superior court of equal status. She observed that the Applicant's opportunity had been to appeal that decision to the Court of Appeal. (c) Kisumu Chief Magistrate's Court Succession Miscellaneous Cause No. E115 of 2024, in which a limited grant of letters of administration ad litem was issued to the Applicant on 19th November 2024 by Hon. D. Matutu, SPM, expressed to be limited to the purpose only of ling suit and valid for ninety days and until further representation was granted. The Applicant's case 12. The Applicant's case, distilled from the grounds on the face of the Motion and his supporting adavit, is as follows. 13. He deposes that he is a son of the deceased and swears the adavit on his own behalf and on behalf of nine named surviving dependants. He states that he holds a grant ad litem issued on 19th November 2024 authorising him to move this Court. 14. The centrepiece of his case is capacity. He deposes that the grant issued to the 3rd Respondent on 7th November 1995 was revoked by the consent order of 14th May 1996, which directed that a fresh grant be taken out in the joint names of Paul Onyango Sule, Kristina Achieng Sule, Gaudencia Apondi Sule, Agneta Juma Sule and Teresia Ochieng Sule; that no such fresh grant was ever taken out; and that the 3rd Respondent therefore had no authority whatsoever when he instituted, prosecuted and ultimately compromised Kisumu HCCC No. 63 of 2006. The consent judgment, he says, is accordingly void ab initio. 15. He further deposes that the beneciaries who executed the sale agreement of 23rd March 1989 had intermeddled with the estate before any grant issued; that the 1st and 2nd Respondents acquired no good title because at the date of the disposition the parcels stood registered in the name of the deceased and no succession process had been commenced; that the 1st and 2nd Respondents, aware of the defects in their acquisition, hurried to record a consent so as to conceal the illegality; that they https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2516/eng@2026-09-24 3

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took advantage of the illiteracy of the beneciaries and constructed substandard houses now unt for habitation, photographs of which are exhibited as PMS/7; and that the outcome of the 2006 suit has left the majority of the beneciaries disinherited. 16. On the question of delay, he deposes that he has sought justice for his late father's estate since 1996 but has been frustrated by the Respondents; that the delay in bringing this Motion is attributable to the nancial limitations that have burdened the family since his father's death; and that further delay was occasioned by his own want of knowledge, the existence of the suits having been concealed from him by his brother, the 3rd Respondent, of which he says he only became aware in 2024. The 1st and 2nd Respondents' case 17. The 1st and 2nd Respondents oppose the Motion on three principal grounds, which are pleaded in the replying adavit and repeated in their submissions. 18. First, they say the Motion is res judicata. They rely on the ruling of Asati J of 7th March 2024 in ELC (OS) No. E017 of 2023 and on the ruling of Aburili J of 13th June 2024 in Misc. Succession Cause No. E001 of 2024, contending that the Applicant is simply relitigating what has twice been determined against him. 19. Second, they say the Motion is incompetent because an application for review under section 80 of the Civil Procedure Act must be made to the court which passed the decree, and that the Applicant ought to have moved Kisumu HCCC No. 63 of 2006 rather than what they describe as 'a fresh suit'. Allied to this, they submit that this Court, having the status of the High Court under Article 162(2) of the Constitution, cannot sit in review of a decision of the High Court. They rely on Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR and on Bellevue Development Company Ltd v Gikonyo & 3 others (Civil Appeal 239 of 2018) [2018] KECA 330 (KLR). 20. Third, they say the Motion is statute barred. They invoke section 4(4) of the Limitation of Actions Act, Cap. 22, which bars an action brought upon a judgment after twelve years, and rely on Willis Onditi Odhiambo v Gateway Insurance Co. Ltd [2014] eKLR. They point out that the judgment and decree sought to be reviewed are respectively some thirteen and fourteen years old. They also invoke sections 7 and 9(2) of the same Act. They further submit, relying on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR, that having failed to appeal the decision of Aburili J the Applicant has resorted to a fresh process, which is an abuse of the process of the court. 21. The 3rd Respondent, though named and expressed to be served, has not led any response to the Motion and did not le submissions. Submissions 22. The Applicant led written submissions dated 5th June 2026. Counsel frames ve issues and argues, in substance, that the review jurisdiction under section 80 of the Civil Procedure Act and Order 45 rule 1 is engaged on the limbs of newly discovered matter and 'any other sucient reason'; that authority to represent an estate is derived solely from a valid grant, so that revocation extinguishes that authority automatically; and that a consent judgment entered by a person without capacity is a nullity. Counsel relies on National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, Trouistik Union International & another v Jane Mbeyu & another [1993] eKLR, Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266 and Flora N. Wasike v Destimo Wamboko [1988] eKLR (both as quoted in Atogo v Wamboye & 6 others (Civil Appeal 53 of 2019) [2025] KECA 327 (KLR)), Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169, Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd [1989] eKLR and Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others (Supra) [2014] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2516/eng@2026-09-24 4

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23. The 1st and 2nd Respondents led written submissions dated 10th July 2026 in the terms already summarised, urging the Court to nd the Motion incompetent, time barred and res judicata, and to dismiss it with costs. 24. I am grateful to both counsel for their industry. Issues for determination 25. Having considered the Motion, the adavits, the annexures and the rival submissions, I frame the following issues for determination: (i) Whether this Court has jurisdiction to entertain an application to review the judgment and decree passed in Kisumu HCCC No. 63 of 2006; (ii) Whether the Motion is competent and whether the Applicant has the capacity to bring it; (iii) Whether the Motion is res judicata and/or statute barred; (iv) Whether the Applicant has established a basis for review under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, and whether the Motion was brought without unreasonable delay; (v) Whether the consent judgment ought in any event to be set aside on the grounds urged; and (vi) What orders should issue, and who should bear the costs. Analysis and determination Jurisdiction to entertain the application for review 26. I begin with jurisdiction, because if the 1st and 2nd Respondents are right on this point nothing else falls for consideration. Their argument, put shortly, is that this Court has the status of the High Court and cannot review or overturn the decision of a judge of concurrent jurisdiction. 27. The authorities they cite do not support the proposition for which they are advanced. Jasbir Singh Rai (Supra) [2014] eKLR and Bellevue Development Company Ltd (Supra) [2018] KECA 330 (KLR) are concerned with a judge purporting, in separate proceedings, to sit in judgment over the decision of a judge of equal and concurrent jurisdiction. That is what Aburili J rightly declined to do in Misc. Succession Cause No. E001 of 2024. It is a dierent thing altogether from the statutory jurisdiction of review. 28. Section 80 of the Civil Procedure Act confers the power of review on 'the court which passed the decree or made the order'. The question, therefore, is whether this Court is that court. It plainly is. Kisumu HCCC No. 63 of 2006 did not disappear and it was not replaced by a fresh suit. Upon the establishment of this Court, and consistently with Article 162(2)(b) of the Constitution and the Environment and Land Court Act, 2011, the le was transferred to this Court and given the number ELC Case No. 374 of 2015. Renumbering a le on transfer does not create a new cause. The suit in which the consent was recorded and the decree extracted is the suit that now bears the number in which this Motion is taken out. 29. It follows that the 1st and 2nd Respondents' second objection that the Applicant ought to have led the Motion 'in Kisumu HCC 63 of 2006 and not in a fresh suit' is misconceived on the facts. The Motion was led in that very le. The Applicant is entitled to the point, and I so nd. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2516/eng@2026-09-24 5

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30. Where the judge who passed the decree is no longer available, Order 45 rule 5 of the Civil Procedure Rules permits the application to be heard by any other judge of the court. Mwera J (as he then was), before whom the consent was recorded, has long since left this station and, indeed, the Bench. There is accordingly no impediment to my hearing the Motion. 31. I therefore nd that this Court has jurisdiction to entertain the Motion. That, however, is a nding about competence to hear. It says nothing about whether the Motion has merit, to which I now turn. The Applicant's capacity 32. The Applicant's authority to move this Court rests on the limited grant ad litem issued on 19th November 2024. Its terms are express. It is limited to 'the purposes only for ling Suit' and is stated to be 'valid for only 90 days and until further representation were granted'. A limited grant confers capacity only to the extent of, and for the duration of, its terms; it is not a general licence to litigate. 33. Two questions therefore arise which neither party addressed: whether a grant limited to the ling of suit authorises the prosecution of an interlocutory application in a suit already on foot; and whether the Applicant retained any representative capacity after the ninety days expired in or about February 2025, this Motion having been argued only in 2026. 34. There is an evident irony in an applicant whose entire case is that his opponent litigated without a valid grant appearing before the Court on an authority of that character. I do not, however, decide the Motion on that footing. The point was not taken by the Respondents, the Applicant has not been heard on it, and, as will appear, the Motion fails on grounds that render it unnecessary. I proceed on the assumption, most favourable to the Applicant, that he is a person aggrieved within the meaning of Order 45 rule 1 and is properly before me. Res judicata and limitation 35. Section 7 of the Civil Procedure Act bars a court from trying 'any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit … and has been heard and nally decided by such court'. The Supreme Court in John Florence Maritime Services & another v Cabinet Secretary, Transport and Infrastructure & 3 others [2021] KESC 39 (KLR) armed both the strictness of the elements and the doctrine's foundation in the public interest in nality. 36. Taken strictly, section 7 speaks to a subsequent suit or an issue arising in one. The present Motion is not a fresh suit. It is an application taken out within the very suit in which the decree under attack was passed. On that narrow ground the plea of res judicata as pleaded does not t. 37. But the 1st and 2nd Respondents' complaint does not stand or fall with the technical t of section 7. The principle of nality of which res judicata is one expression, and the inherent power of the Court to prevent the abuse of its own process, are fully engaged. The Applicant has now placed the same essential grievance that the estate lost parcels 1766 and 1767 through the intermeddling of 1989 and the consent of 2009 before three courts. Asati J struck out his originating summons in March 2024. Aburili J declined in June 2024 to disturb the sale or transfer, holding that a court of competent jurisdiction had spoken and that the remedy lay in an appeal. He appealed neither decision. He has instead come to this Court with the same grievance in a third form. In Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others (Supra) [2009] eKLR the Court of Appeal identied the institution of dierent https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2516/eng@2026-09-24 6

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actions between the same parties on the same subject, and the use of two similar processes in the exercise of the same right, as examples of abuse of process. The observation is apposite. 38. On limitation, I am not with the 1st and 2nd Respondents. Section 4(4) of the Limitation of Actions Act provides that 'an action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered'. The provision is directed at proceedings founded upon a judgment as a cause of action paradigmatically, its enforcement. That is precisely the context of Willis Onditi Odhiambo v Gateway Insurance Co. Ltd (Supra) [2014] eKLR, on which they rely, where the appellant sought to execute a 1996 decree by way of fresh suits in 2009 and 2012. An application for review under section 80 is not an action brought upon a judgment; it is a step taken within the suit in which the judgment was given. Sections 7 and 9(2) of the same Act, which govern actions to recover land, are equally inapplicable to an interlocutory application, whatever their force might be against a fresh claim to the parcels. The limitation objection as framed therefore fails. 39. That is not the end of the matter of time, however, because Order 45 rule 1 imposes its own temporal discipline, to which I now come. Whether grounds for review have been established 40. Order 45 rule 1(1) permits a person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred, 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 on account of some mistake or error apparent on the face of the record, or for any other sucient reason, desires to obtain a review, to apply for a review of judgment. The rule requires that the application be made without unreasonable delay. 41. On the meaning of 'sucient reason', the Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau (Supra) [1997] eKLR an authority on which the Applicant himself relies held that a review may be granted whenever the court considers it necessary to correct an apparent error or omission on the part of the court, that the error must be apparent on the face of the record, and that a review is not an appeal in disguise. The Court was explicit that the mere fact that a court has taken an erroneous view of the law or of the evidence is not a ground for review; that is a matter for appeal. 42. Against that standard the Applicant's material does not carry him. He relies on no error apparent on the face of the record of the consent judgment. His case is not that the court which recorded the consent erred; it is that it was misled. That is properly a case about vitiating factors, which I address separately below. 43. Nor is there any newly discovered matter or evidence within the meaning of the rule. The order of 14th May 1996, the Form P&A 5 of 1993, the consent of 10th December 1993 and the sale agreement of 23rd March 1989 are all documents of thirty years' standing or more, and all of them are documents of the deceased's own family. The Applicant himself deposes that he has been agitating this very complaint 'since the year 1996'. Evidence available all along and only lately marshalled is not newly discovered evidence. As for the ruling of Aburili J of 13th June 2024, it is not evidence that existed and was undiscoverable when the decree was passed; it is a subsequent judicial decision, and a decision which, on the very relief the Applicant seeks, went against him. 44. There is a more fundamental evidential diculty. The single fact upon which the entire Motion is built is that the grant relied on by the 3rd Respondent stood revoked with nothing put in its place. Yet no copy of the order of 14th May 1996 has been placed before me. The Applicant's annexures run https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2516/eng@2026-09-24 7

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from PMS/1 to PMS/8 and do not include it. The Court is asked to take the fact from recitals in the Applicant's own adavits and from the ruling of Aburili J. 45. When one turns to that ruling, it does not say what the Applicant says it says. At paragraph 2 of her ruling the learned Judge recorded that following the application by the 2nd to 4th respondents, the court on 14th May 1996 ordered the grant revoked and another issued in the names of the respondents therein. At paragraph 49 she proceeded to order 'that the grant issued to the respondents on the 14th May 1996 be revoked'. A grant cannot be revoked in 2024 if it never came into existence in 1996. The premise of the Motion that no grant subsisted after 14th May 1996 is therefore contradicted by the very decision on which the Applicant relies. 46. The Applicant cannot have it both ways. If, as Aburili J recorded, a joint grant issued on 14th May 1996 in the names that included the 3rd Respondent, then the 3rd Respondent was an administrator when he led suit in 2006, and the complaint reduces to one of non-joinder of his co-administrators. That is a defect of an altogether dierent order. It would not render the proceedings a nullity and it would not have been beyond cure. It is not the case the Applicant has pleaded and it is not one I can decide on this material. 47. I turn to delay, which in my view is dispositive. The consent letter is dated 15th October 2009. The decree is expressed to be given under the hand and seal of the court on 13th July 2010 and to have been issued on 13th December 2012. The Motion is dated 20th January 2025. On any measure that is a delay of more than twelve years; measured from the consent and the decree, it is a delay of between fourteen and fteen years. 48. The explanations oered are nancial hardship and want of knowledge. Financial hardship, sincerely felt as it no doubt is, cannot of itself excuse a delay of that magnitude; if it could, Order 45's requirement of promptness would be meaningless. The plea of ignorance fares worse, because it is contradicted by the Applicant's own record: (a) he deposes at paragraph 17 of his supporting adavit that since 1996 he has 'relentlessly sought for justice' for his father's estate and that the Respondents have frustrated his eorts to reclaim the land parcels; (b) he led Kisumu ELC (OS) No. E017 of 2023 in May 2023 concerning the very parcels Kisumu/Ojola/1766 and Kisumu/Ojola/1767, naming the 1st and 2nd Respondents and the 3rd Respondent as defendants; (c) the application of 2nd October 2023 in that suit expressly relied on the decree in Kisumu HCCC No. 63 of 2006, and Asati J's ruling of 7th March 2024 turned squarely upon it; and (d) his summons of 8th January 2024 in Misc. Succession Cause No. E001 of 2024 recites the sale of West Kisumu/Ojola/1767 to the 1st and 2nd Respondents in terms that leave no doubt of his knowledge. 49. On the most generous view available to him, the Applicant knew of the consent decree by October 2023 at the very latest. He did not move this Court until 20th January 2025, and the Motion has taken until the middle of 2026 to be canvassed. Even measured from the date of his own knowledge rather than the date of the decree, the delay is unexplained. Measured from the decree, it is extraordinary. 50. For these reasons I nd that the Applicant has established no ground for review under section 80 of the Civil Procedure Act or Order 45 rule 1 of the Civil Procedure Rules, and that in any event the Motion was not brought without unreasonable delay. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2516/eng@2026-09-24 8

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Whether the consent judgment should in any event be set aside 51. Because the Applicant's case has been argued with some force on the footing that the consent is a nullity rather than merely reviewable, I address it on the merits, lest it be thought the Court has shut the door on a technicality. 52. The law on interference with a consent judgment is settled and both counsel correctly identied it. In Flora N. Wasike v Destimo Wamboko (Supra) [1988] eKLR the Court of Appeal held that a consent judgment may only be set aside on the same grounds as would justify the setting aside of a contract, such as fraud, mistake or misrepresentation. To like eect are Brooke Bond Liebig (T) Ltd v Mallya (Supra) [1975] EA 266 and Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR 485, in which Harris J added that a consent may be interfered with where it was entered into without sucient material facts, or in misapprehension or ignorance of material facts. 53. The Applicant's most attractive submission is the Macfoy v United Africa Co. Ltd (Supra) [1961] 3 All ER 1169 point: that a thing done without authority is void, that a void act is incurably bad, and that you cannot put something on nothing and expect it to stay there. The principle is unimpeachable. Its application here depends entirely on the factual premise that the 3rd Respondent had no representative capacity at all. For the reasons given in the preceding section, that premise is not established on the material before me and is contradicted by the Applicant's own principal authority. 54. The reliance on Trouistik Union International & another v Jane Mbeyu & another (Supra) [1993] eKLR is similarly double-edged. It is undoubtedly correct that section 82(a) of the Law of Succession Act confers on personal representatives, and on them alone, the power to enforce a cause of action vested in a deceased person. But that principle applies with equal rigour to the Applicant, whose own standing rests on a limited grant of the character described above. 55. As to concealment, fraud and misrepresentation must be pleaded with particularity and proved to a standard higher than the ordinary balance of probabilities, though not the criminal standard: Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR; Kinyanjui Kamau v George Kamau [2015] eKLR. The Applicant's averments of 'devious tactics', 'corrupt, manipulative and fraudulent tactics' and 'hoodwinking' are pleaded at the level of assertion. No particulars are given of what was said or withheld, by whom, to which judge and on what date. A signicant part of the adavit is expressly deposed on the advice of counsel. That will not do where fraud is alleged. 56. There is a further diculty of a practical kind that the Applicant did not confront. Setting aside the consent would not restore the parcels to the estate. It would do no more than revive Kisumu HCCC No. 63 of 2006 a suit in which the Applicant is not the plainti for trial forty years after the death of the deceased and thirty-seven years after the impugned sale, against titles that were registered in the 1st and 2nd Respondents' names from 22nd December 1988 as regards Kisumu/Ojola/1766 and 7th November 1995 as regards Kisumu/Ojola/1767. The witnesses to the 1989 agreement are, on the face of the record, largely deceased. The court does not act in vain. 57. Nor is the estate without a remedy, and it is important that the beneciaries understand this. Aburili J addressed precisely this point at paragraph 43 of her ruling: because the person who sold the land beneted from the sale, the court, on distribution, has power to order that the portion sold and beneted from be treated as part of that person's share, so that no other beneciary is disinherited or disadvantaged by the disposal. That remedy lies in the succession cause. It is unaected by anything in this ruling, as is the injunction she issued on 13th June 2024 restraining intermeddling with the estate pending fresh succession. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2516/eng@2026-09-24 9

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58. The Applicant's true remedy against the decree of 2010 and against the ruling of Asati J of 7th March 2024 lay in an appeal to the Court of Appeal. Aburili J told him as much in terms. Review is not, and cannot be permitted to become, a substitute for an appeal that was never lodged. 59. Prayer (b) of the Motion, seeking an injunction pending the hearing and determination of the Motion inter partes, is spent by this ruling. In any event the suit properties are already covered by the injunction of 13th June 2024. Observations on the record 60. Two matters call for comment before I turn to disposition. 61. First, prayer (a) of the Motion seeks review of 'the consent Judgment entered on 08/08/2011'. No judgment of that date has been demonstrated on the material before me. The decree exhibited as PMS/6 recites the consent letter of 15th October 2009, is expressed to be given under the hand and seal of the court on 13th July 2010, and was issued on 13th December 2012. The replying adavit speaks of a consent led on 13th July 2010 and entered on 8th August 2010. A court asked to review a judgment is entitled to be told, accurately, which judgment it is being asked to review. 62. Second, the replying adavit is sworn by counsel having the conduct of the matter. It is undesirable for an advocate to depose to contested facts in his client's cause, and much of paragraph 3 of that adavit is directed at matters extraneous to this Motion, including allegations about the deponent's own past retainer and about proceedings before Kibunja J. I have conned myself to those parts of the adavit that are responsive to the Motion and are borne out by the record. What orders should issue, and who should bear the costs 63. Drawing the threads together: this Court is seized of jurisdiction to entertain the Motion, and the objections founded on the status of this Court, on the le in which the Motion was taken out, and on section 4(4) of the Limitation of Actions Act all fail. The Applicant, however, has established no ground for review under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules; the factual premise of his Motion is unproved and is contradicted by the authority on which he relies; the Motion was brought after unreasonable and unexplained delay; the allegations of fraud and concealment are not particularised or proved; and the grievance has already been placed before two other courts of competent jurisdiction without appeal from either decision. 64. On costs, the ordinary rule is that costs follow the event. I have weighed against that the fact that this is family litigation over a modest estate, that the 1st and 2nd Respondents' own objections partly failed, and that Aburili J made no order as to costs. Weighing these considerations, I direct that each party shall bear its own costs of the application. Disposition 65. Accordingly, and for the reasons set out above, I make the following orders: I. That the Applicant's Notice of Motion dated 20th January 2025 be and is hereby dismissed. II. That for the avoidance of doubt, nothing in this ruling aects the orders made by the High Court at Kisumu in Miscellaneous Succession Cause No. E001 of 2024 on 13th June 2024, including the temporary injunction issued thereunder, or the fresh succession proceedings directed therein. III. That each party shall bear its own costs of the application. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2516/eng@2026-09-24 10

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IV. That the le is hereby closed. DATED, SIGNED AND DELIVERED AT KISUMU THIS 24TH DAY OF SEPTEMBER, 2026. E. K. WABWOTO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2516/eng@2026-09-24 11

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