https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8030

In re Estate of the Late Mutai (Succession Cause 368 of 2012) [2026] KEHC 8030 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEHC 8030 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 368 of 2012 JRA Wananda, J June 5, 2026 IN THE MATTER OF THE ESTATE OF THE LATE STEPHEN KIPLAGAT MUTAI Between Patroba J Mutai Petitioner and Zenah Chepkemboi Objector Ruling 1.I delivered a Ruling in this matter on 24/01/2024 by which I determined the Objector’s Application dated 7/12/2020, which had sought revocation of the Amended Grant of Letters of Administration obtained by the Petitioner on 29/11/2019. The background of the matter is captured in my said Ruling as follows:“1.The deceased, Stephen Kiplagat Mutai (deceased) died on 28/09/2000. 12 years later, on 15/11/2012, his son and daughter, the late Chapta Lagat, and Patroba Mutai (the Petitioner-Administrator herein), as joint Petitioners, filed an Application for Letters of Administration in respect to the estate of the deceased. The Petition was filed through Messrs E.C. Rotich & Co. Advocates and therein, apart from the 2 Petitioners, their 6 other siblings, were also listed as survivors of the deceased. The only estate property mentioned as comprising the estate was Moi’s Bridge/Moi’s Bridge Block 3 (Mogoon)12 whose value was placed at approximately Kshs 2 Million and which, from the documents on record, measures approximately 30.85 acres. It was also stated that there were 33 purchasers of portions of the property and who therefore amounted to liabilities.2.The Grant was then issued to the two joint Petitioners on 26/04/2013 and the same was subsequently confirmed on 9/06/2014. In distribution, the said property, Moi’s Bridge/Moi’s Bridge Block 3 (Mogoon)12, was distributed in two parts. One part was distributed amongst the purchasers, although those listed were much less than the 33 referred to in the Petition. The other part was distributed between the said Chapta Kipchirchir Lagat (5.77 Ha) and the Petitioner, Patroba Jepchumba Mutai (1.10 Ha), respectively. 2 further portions, 1.04 and 0.04 Ha, respectively, were then also distributed, jointly, to the said Chapta Kipchirchir Lagat and the Petitioner, Patroba Jepchumba Mutai.3.On 28/11/2019, Patroba J. Mutai returned to Court with the disclosure that Chapta Kipchirchir Lagat had since died on 24/08/2014 and for that reason, this time through Messrs Kigen, Ngetich & Co. Advocates, applied that the name of Chapta Kipchirchir Lagat be deleted from the Grant as co-Administrator. The Petitioner also applied that the portions earlier distributed to Chapta Kipchirchir Lagat be now re-distributed to her. The Application was allowed as prayed on 29/11/2019 and an Amended Certificate of Confirmation of Grant issued. It is this amendment that jolted the Objector into action leading to the filing of the Application the subject of this Ruling.” 2.In determining the Application, I made rather lengthy declarations and/or orders as follows:“43.The upshot of my findings is that the Summons dated 7/12/2020 only partially succeeds, and I rule and order as follows:i)It is declared that even if the Objector were to prove that she is a daughter-in-law of the deceased by virtue of being the alleged widow of the late Chapta Kipchichir Lagat, a son of the deceased, the Objector would still not in her own personal capacity be legally entitled to claim any direct inheritance from or a share of the estate of the deceased as a beneficiary; only the children of her late alleged husband can make such claim in respect to the share that their father would have been entitled to. The Objector would however, if indeed she is the holder of Letters of Administration in respect to the estate of the late Chapta Kipchichir Lagat, be legally entitled to maintain an action as a legal representative, on behalf of the estate of Chapta Kipchichir Lagat for, on behalf of and for the benefit of the said children for inheritance.ii)As the Petitioner contends that the shares currently held in her name in respect to the property known as Moi's Bridge Block 3 (Mogoon) 12, as per the Amended Certificate of Confirmation of Grant dated 4/12/2019 are so held in trust for the rest of the survivors/beneficiaries of the deceased herein, and that further or conclusive distribution amongst them is yet to be undertaken, it is directed that such further distribution be now undertaken to finalize the distribution of the said property.iii)Any other properties/assets not currently listed as comprising the estate and/or which may still be subject of litigation before the Environment & Land Court (ELC) should not hold up final distribution of the property known as Moi's Bridge Block 3 (Mogoon) 12, and which is the one and only property currently listed as comprising the estate of the deceased herein.iv)Consequently, within thirty (30) days from the date hereof, the Petitioner-Administrator shall file and serve an Application for Further Amendment of the Certificate of Confirmation of Grant, or any other appropriate description, and to the Affidavit thereto, shall attach a schedule of her proposed mode of distribution amongst the survivors/beneficiaries of the deceased, including the estate of the late Chapta Kipchirchir Langat, of the remainder of the property known as Moi's Bridge Block 3 (Mogoon) 12 still available for distribution, excluding the portions already allocated in the Amended Certificate of Confirmation to third parties/purchasers.v)It is expected that the proposed distribution referred to above shall be on the basis of equal shares amongst all the survivors/beneficiaries and shall take into account the shares already allocated to the Petitioner and to the said the late Chapta Kipchirchir Langat in advance, as appears in the current/existing Amended Certificate of Confirmation of Grant dated 4/12/2019. The Petitioner shall however be at liberty to propose a mode of distribution grounded on any other basis other than “on the basis of equal shares”, but in the event of a proposal of such nature, she shall present a clear explanation and/or justification thereof for consideration by the Court.vi)Upon receipt/service of the Application, the Objector shall have fourteen (14) days thereafter, to file and serve her response to the Petitioner’s distribution proposal.vii)The parties shall then be at liberty to discuss and explore an amicable settlement on the issue of distribution as aforesaid, and/or the Court may refer the matter to Court annexed Mediation for such purposes, but in the event of failure to reach such settlement, the Court shall proceed to determine such distribution of the estate. In regard thereto, a Mention date shall now be fixed when appropriate directions shall be given thereon.viii)In the interim, there shall no sale, transfer, sub-division or any other such activity to be undertaken at the Lands Office by any party in respect to the property known as Moi's Bridge Block 3 (Mogoon) 12 and/or any title or parcel of land resulting from sub-division thereof, if any.ix)Each party shall bear its own costs of the Application herein.” 3.In what I presume to be on the basis of order (vii) above, the parties initiated and engaged in out of Court discussions but with no success achieved, they requested that the matter be referred to Court Annexed Mediation. Consequently, the matter was then referred to Court Annexed Mediation under Mr. Philemon K. Tanui as the Mediator. Thereafter, the Full Mediation Settlement Agreement dated 15/04/2021 was presented to Court for adoption. 4.However, before the Agreement could be adopted by the Court, the Petitioner, through her Advocates, Messrs Kalya & Co., filed the Summons dated 22/10/2025 seeking orders as follows:i.That there be a stay of proceedings/execution of the Mediation Agreement dated 15th April 2025 pending the hearing and determination of this Application inter partes.ii.That leave be granted to the Petitioner to set aside the Mediation Settlement Agreement herein and/or and subsequent order or decree arising therefrom.iii.That upon grant of prayer 3 herein above, the Hon. Court be pleased to review/vary or set aside the Mediation Settlement Agreement dated 15th April 2025.iv.That upon grant of prayer 3 above, the matter be referred to a different Mediator for the beneficiaries to mediate on the distribution of the estate herein. the amended grant of letters of administration made to Patroba J Mutai on 29th November be revoked on the following grounds;v.That the costs of this Application be provided for. 5.The Application is supported by the Affidavit sworn by the Petitioner, in which she deponed that she attended the first mediation session on 15/04/2025 together with the Objector in which, upon their agreement, the mediation was adjourned to 30/05/2025 to give the two time to discuss the dispute together with other beneficiaries. She deponed that she was therefore shocked when showed up at the mediation session on the said 30/05/2025, only for the Mediator to inform her that there was nothing more to mediate as the matter had been settled. She urged that it is upon this turn of events that she informed her Advocates about the matter, who then issued a letter complaining about the manner in which the Mediation had been conducted. She deponed further that subsequently her Advocates obtained a copy of the Settlement Agreement, which upon her perusal, the contents thereof shocked her, she observed that is not even signed by the parties. According to her, what the parties signed was only the attendance sheet which has been juxtaposed to the purported Agreement. She also contended that, inter alia, there was misconduct, fraud and fundamental mistake on the part of the Mediator, that the purported Agreement is in conflict with the Amended Certificate of Grant on record which it purports to further amend without involving all beneficiaries, and that the Agreement is invalid and thus incapable of enforcement as it purports to give a deceased Administrator property to hold in trust for the beneficiaries in total dereliction of this Court’s orders of 4/12/2019. 6.The Objector opposed the Application by way of the Replying Affidavit she swore on a date not however indicated. The same was however filed on 11/11/2025 through her Advocates, Messrs Martim & Co. In the Affidavit, the Objector refuted the Petitioner’s allegations that there was fraud in the Mediation process, and averred that the same was conducted procedurally and transparently and all parties were accorded the opportunity to, and did, participate therein. She contended that the Petitioner was notified of all the mediation sessions and attended all, which sessions then culminated into the Settlement Agreement dated 15/04/2025 which the Petitioner signed. She also denied that the Mediation was, at any time adjourned to a future date as alleged by the Petitioner. 7.The parties then filed written Submissions. The Petitioner’s Submissions is dated 22/01/2026, while the Objector’s is dated on 20/01/2026. Petitioner’s Submissions 8.The Petitioner’s Counsel, after retracing the background to the Ruling dated 24/01/2025, in summary, submitted that this Court, in the said Ruling, gave very specific directions that the scope and extent of the Mediation was to be only limited to deciding on the issue of distribution of the 5.77 Hectares from the Petitioner (as Administrator) to the beneficiaries. She contended that the Mediator unilaterally deviated from that direction as the purported Agreement allegedly vests back the entire 5.77 Hectares to the Objector. She also wondered how the estate could be restored to the deceased former co-Administrator yet he is no longer alive. She therefore termed the Agreement as being in breach of Section 76(e) of the Law of Succession Act insofar as it vests an estate into a deceased former Administrator. She insisted that the Mediation was conducted in only one session, which was also not attended by all beneficiaries, and that there is also no evidence that all were even notified. Counsel insisted that the Petitioner never signed the Agreement, and also asserted that the Agreement is not in compliance with the Form 12 provided and/or stipulated under Section 32(1) of the Practice Directions. She also cited several authorities to buttress the various limbs of her arguments above. Objector’s Submissions 9.Counsel for the Objector, on the other hand, after recounting the background of the matter, and restating the law on setting aside of Mediation Agreements and/ or Consent Orders, in summary, submitted that the Petitioner has not proved the allegations of fraud, or collusion, or misrepresentation, and submitted that once adopted, the Agreement assumed the force of a judgment, and as such, became binding. He contended that the Objector’s is mere dissatisfaction with the outcome of the Mediation. He also urged that the Petitioner has relied on Section 80 of the Civil Procedure Act which deals with review of orders yet there is no discovery of new and important evidence, nor is there an error on the face of the record, or any “sufficient reason” as stipulated under that Section. Counsel further submitted that the matter cannot be re-assigned to a new Mediator since the Court, having adopted the Agreement, is now functus officio in respect to the Mediation. Determination 10.The issue that I am called upon to determine in this matter is basically “whether the Court should decline to adopt the Full Mediation Settlement Agreement presented to this Court and indicated to be a product of the Court Annexed Mediation to which the Court had referred the remainder of the dispute in this matter”. 11.I may first state that, in Kenya, the process of Court Annexed Mediation is governed by the Civil Procedure (Court-Annexed Mediation) Rules, 2022, otherwise referred to as the Mediation Rules, 2022. Needless to state, Mediation as an alternative dispute resolution mechanism, itself anchored in Article 159 (2)(c) of the Constitution of Kenya. 12.The effect of the execution or adoption of a Mediation Settlement Agreement was aptly captured by Kamau J, in the case of Alios Finance Kenya Limited v Country Farms Limited (Civil Appeal E005 of 2020) [2022] KEHC 11012 (KLR), in the following terms:“Any agreement filed with the Deputy Registrar or Magistrate or Kadhi as the case may be shall be adopted by the Court and shall be enforceable as a Judgment or order of Court.”Notably, once a mediation agreement is signed, it becomes final and binding on the parties. Mediation agreements were in the nature of consents. …………..” 13.Setting aside of a Court order adopting a Mediation Settlement Agreement is then governed by Section 39 of the Civil Procedure (Court Annexed Mediation Rules) which provides as follows;(1)No Application for setting aside of an order or decree arising from a mediation settlement agreement shall be filed except with the leave of court.(2)An Application for leave under sub-rule (1) shall be supported by an affidavit detailing the grounds upon which the Applicant intends to rely in setting aside the order or decree. 14.The Rules therefore envision setting aside of the order arising from the Settlement Agreement, and not the Settlement Agreement itself. Setting aside of a Mediation Settlement Agreement is therefore a completely different issue altogether. 15.From a reading of the Objector’s Submissions, it is evident that she is proceeding under the erroneous belief that the Settlement Agreement was already adopted by the Court and has, as such, become an order of the Court. I call this an erroneous belief because the Agreement is yet to be so adopted. It is when it came up in Court on 24/06/2025 for adoption that Ms. Kesei acting for the Petitioner informed the Court that they would be opposing the adoption. The Agreement is therefore yet to assume the status of a formal order or a decree of the Court. 16.Back to the substantive issue. In this case, the Petitioner wants the Court to decline to adopt the impugned Mediation Settlement Agreement, and to set it aside on the ground that she is not a signatory thereto. Indeed, an order adopting a Mediation Settlement Agreement, or the Agreement itself, even if yet to be adopted, as herein, is liable to be set side where it is demonstrated that a party never signed it, or the parties never reached a settlement. One case in which such Agreement was set aside is In re Estate of BM (supra), in which, Muchelule J (as he then was) held as follows:“It is clear that the final deed of settlement had not been agreed upon. The parties hoped to agree before 28th February 2018. On this, the parties agreed and appended their signatures. But, the attached template (both handwritten and typed) was not signed by the parties. It could not have been signed because the deed of settlement was yet to be adopted. It was to be adopted later (to be ready for lodging in court before 28th February 2018). 24.In conclusion, I find that the documents dated 14th February 2018 and 14th December 2017 did not amount to a mediation settlement agreement. The parties had not reached a settlement. They had not appended their signatures to any settlement. With respect, the mediator misled the court into thinking that the parties had reached a settlement. It was a misrepresentation on the part of the mediator that led the court to endorse the alleged settlement. There being no mediation agreement settlement, therefore, I allow the respondent’s application dated 20th November 2018 with costs. I set aside the orders of this court dated 12th March 2018 ……” 17.In this case, the Petitioner alleges that only one Mediation session was conducted on 15/04/2025, which was, in any event, adjourned to 30/05/2025 to give the parties more time to discuss a possible resolution. She therefore denies signing any Agreement, and states that all she signed was the attendance sheet for 15/04/2025, which she claims, has been juxtaposed to the Agreement presented to Court for adoption. The Objector, on her part, swears that there were several mediation sessions held on various dates, all attended by the Petitioner, which, in the end, culminated into signing of the Settlement Agreement on 15/04/2025, which she insists the Petitioner signed. 18.I however note that although the Objector alleges that several mediation sessions were conducted on various dates, she does not disclose which are these dates that the sessions were allegedly conducted prior to the Agreement being allegedly signed on 15/04/2025. All that the Objector has exhibited is a single notification of hearing scheduled for 21/03/2025. There is no indication whether that session of 21/03/2025 took off, or what transpired during the alleged various sessions. I do not therefore have sufficient material to verify the Objector’s allegations that there were several mediation sessions held on various dates, and attended by the Petitioner, prior to signing of the Agreement on 15/04/2025. 19.As also correctly observed by Ms. Kesei, the Agreement is not in compliance with Form 12 which is the Form provided and/or stipulated under Section 32(1) of the Practice Directions to be used in recording a Settlement Agreement. The format provided in the Form was deliberately wisely arrived at by the drafters of the Directions to avoid ambiguities such as those apparent in the Agreement presented to Court in this case. I say so because Form 12 contains clear wording and a format that ensures that a party who appends his/her signature knows very well what he/she is signing, and on what documents. Had Form 12 been utilized in this case by the Mediator, there would be no controversy at all over whether what the Petitioner signed was only the attendance sheet as she claims, or the Agreement itself. Mediators are therefore reminded to always make use of Form 12 aforesaid. 20.More fundamentally, a casual perusal of the orders I gave on 24/01/2025 reveals that after making various declaration in respect to the parties’ rights of inheritance, I deliberately set out a clear road-map to be followed by the parties before they could opt to move to mediation. In order (iv) and (v), I very expressly directed the Petitioner to, within 30 days, file and serve an Application for Further Amendment of the Certificate of Confirmation of Grant and thereby present her proposed mode of distribution of the estate. I very clearly identified what should be contained in the Application, which I also expressly directed to be in line with, and/or in accordance with the declarations I made in the Ruling. Under order (vi), I then directed that upon service, the Objector would have 14 days to file a response to the Application. 21.It was only after these prerequisites had been met that the parties would then have the liberty to either ask the Court to determine the distribution of the estate on the basis of the proposals they presented, or in the alternative, to proceed to Mediation for the same. I gave the above road-map in plain and clear language and I cannot believe that the parties could have failed to comprehend the same. Instead, what did the parties do? Without bothering to comply with the prerequisites expressly set out under orders (iv), (v), (vi) and (vii), they, without reminding the Court of the prerequisites it had already set, by their consent, misled the Court on 10/03/2025 into prematurely referring the dispute to Court Annexed Mediation. As aforesaid, my aim of fixing the above prerequisites was to avoid a situation such as the exact one the parties have now found themselves in. In the Ruling, I deliberately determined basically all other disputes on inheritance rights over the estate save for distribution thereof. I stated that this remaining portion of the dispute could then be resolved by mediation, whose scope I therefore limited to only that remaining portion of the dispute, namely, distribution on the basis of what the parties would have proposed in their Affidavits directed to have been filed. 22.I deliberately made the declarations over inheritance rights in the Ruling so as to seal any loopholes that could have re-opened the dispute or elongated the litigation. It is therefore surprising that the Petitioner now correctly submits that the scope of the Mediation was supposed to be limited and not open-ended in the manner in which it appears to have proceeded. It is evident that the Petitioner, though fully aware of the prerequisites set out, still knowingly participated in misleading the Court into prematurely referring the dispute to Mediation very well aware that she had, herself, not complied with the prerequisites, specifically, that she had not yet filed the Application for Amendment of the Certificate of Confirmation in which she was supposed to have presented her proposed mode of distribution. It is therefore surprising that she is now the one playing victim. Was she not the author of her own misfortune in the circumstances? It is because of her disregarding of the prerequisites cited that the parties have again found themselves in the current situation. The Petitioner, now that the outcome of the Mediation has gone against her, she comes back running seeking refuge under the same Ruling that she knowingly disregarded. She is being hypocritic. 23.Be that as it may, there is no doubt that the impugned Mediation went beyond the scope that this Court had limited it to. I may not blame the Mediator as I cannot ascertain that the contents of my said Ruling were even brought to her attention. However, by straying beyond the permitted scope, the Mediation purports to re-open disputes that this Court had long already concluded, determined and sealed, the very situation this Court sought to avoid when giving the option of Mediation once the parties had presented their respective modes of distribution. All other issues having already been determined by this Court therefore, all that remained was for the parties to present their respective modes of distribution, either for determination by the Court or for reference to Mediation. The Mediation having however gone well beyond the scope it was limited to and thereby creating the quagmire that has now arisen, it cannot stand. Final Orders 24.In view thereof, the Petitioner’s Summons dated 22/10/2025 succeeds to the following extent:i.The Mediation Settlement Agreement dated 15/04/2025 is hereby set aside, the Court having found the Mediation to have been prematurely commenced before the parties had complied with the express prerequisites stipulated in the Ruling dated 24/01/2025, and the Mediation having also exceeded, or deviated beyond the limited scope of issues within which it was referred and confined to.ii.The parties are accordingly, once again directed to comply with the express and clear orders (iv), (v) and (vi) of the Ruling dated 24/01/2025 before the issue of distribution of the estate can be determined either by the Court, or in the alternative, by way of Mediation.iii.In the event that the issue of distribution of the estate is to be resolved at Mediation, to avert accusations of bias against the Mediator, even though none has been demonstrated, I direct that the same shall be referred to a different or another Mediator, other than the said Philemon K. Tanui.iv.As both parties are at fault for misleading the Court into prematurely referring the matter to Mediation as aforesaid, each party shall bear her own costs of the Application. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 5TH DAY OF JUNE 2026…………………..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Ms Rotich h/b for Mr. Martim for the Objector-RespondentN/A for the Petitioner/Administrator-ApplicantCourt Assistant: Rodgers Tshombe