https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10119

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **SUCCESSION CAUSE NO. E025 OF 2021** **IN THE MATTER OF THE ESTATE OF PETER KIBISU INDIMU (DECEASED)** **FLORENCE KADALI KIBISU..................................PETITIONER/APPLICANT** **VERSUS** **BRIAN INDIMU KIBISU........................................OBJECTOR/RESPONDENT** **Coram: Before Justice R. Nyakundi** **M/S Limo R.K. Co. Advocates** **M/S Seneti & Oburu Associates** **RULING** 1. Before this Court is Summons dated 29th January 2026, expressed to be brought under Articles 47 and 50 of the Constitution, sections 47, 74 and 76 of the Law of Succession Act (Cap 160) and rules 43, 44(1) and 73 of the Probate and Administration Rules and all enabling provisions of the law. The Applicant seeks the following orders: 2. *Spent.* 3. *THAT this honorable Court be pleased to issue orders of stay of proceedings and/or further proceedings in this matter pending the hearing and determination of this summons.* 4. *THAT this Honorable Court be pleased to issue interim orders of injunction restraining the objector/Respondents either by themselves or through their servants and/or agents from trespassing into, interfering with and/or in any other way dealing and/or doing any other acts inconsistent with the Petitioners'/Applicants' and other beneficiaries' peaceful occupation and/or possession of all that parcel of land namely PIONEER/NGERIA BLOCK 1(EATEC)/9360 pending the hearing and determination of this inter partes and thereafter the instant summons.* 5. *THAT this Honorable Court be pleased to issue mandatory orders compelling the objector/respondent to release the original title deed for PIONEER/NGERIA BLOCK 1(EATEC)/9360 which is in his custody for purposes of transfer/transmission to the other beneficiaries.* 6. *THAT the petitioner/applicant's summons seeking the rectification of confirmed grant dated 30/4/2025 be confirmed and fixed for hearing and determination on priority basis.* 7. *THAT the honorable Court be pleased to issue orders of extension of time lines by six months with respect to compliance with the payment of the outstanding balance recorded in the consent order dated 11/11/2024 pending the hearing and determination of the application for amendment of grant dated 30/4/2025.* 8. *THAT the honorable Court be pleased to vary, discharge, review and/or set aside its ruling and orders issued on 24/7/2025 as prayed by the applicant.* 9. The application is based in the following grounds: 10. *The applicant, other beneficiaries and the objector entered into a consent order after a long protracted succession dispute that was eventually adopted by Court on the 11/11/2024 by the parties and beneficiaries thereto.* 11. *The adoption of the consent order dated 11/11/2024 took more than four months after the mediation agreement had been entered by the parties herein on the 26/7/2024 hence the commencement period was delayed by four months which the Court is invited to enlarge for full compliance by the applicants.* 12. *The applicant is in partial compliance with the consent orders dated 11/11/2024 however the objector/respondent has not taken a single step to comply with the consent order and in blatant disregard to the consent order the objector has refused/failed and or neglected to surrender the title for PIONEER/NGERIA BLOCK 1(EATEC)/9360 for onward transfer/transmission to the other beneficiaries making the entire process a one sided affair to the detriment of other beneficiaries.* 13. *The objector/respondent has failed and/or refused and/or neglected to surrender all his documents and testimonials for purposes of removal of the petitioner/applicants name as stipulated in the consent order dated 11/11/2025.* 14. *That despite the respondent/objector glaring noncompliance with the consent orders dated 11/11/2024, he is using the same orders to disinherit the other beneficiaries of their rightful share in PIONEER/NGERIA BLOCK 1(EATEC)/9360 by threatening to displace, subdivide and sale the parcel of land to third parties against the consent order unless the honorable Court intervenes and issues conservatory orders.* 15. *The petitioner/applicant moved the Court vide an summons for rectification of grant dated 30/4/2025 however the said summons have never been heard and determined by the honorable Court which summons are still pending unconfirmed/ unheard to the detriment of the applicants and the other beneficiaries against their right to fair hearing/fair administrative action.* 16. *The summons for rectification of grant was pertinent and of great importance since it would have enabled the applicant to secure finances for purposes of compliance with the consent orders dated 11/11/2024 herein.* 17. *The Respondents/objector/Administrators without the involvement of the applicant/petitioners/beneficiaries moved the Court and obtained orders/ruling dated.... And is using the adverse Court ruling/ order to disinherit the other beneficiaries notwithstanding the fact the respondent failed to disclose pertinent material facts.* 18. *The respondent/Administrators never served the applicant with the said summons dated 2/4/2025 and never even discussed with the co administrator on how they will administer the estate but secretly moved to Court and initiate these proceedings behind the applicant/petitioners' back.* 19. *The proceedings to obtain the said orders were defective in substance and form.* 20. *The process was tainted with irregularities misrepresented and concealment of material facts from the beginning which renders it null and void.* 21. *That unless the orders of stay of proceedings sought herein issue, the Applicant stands to suffer irreparable loss and damages which cannot be monetarily compensated.* 22. *That unless the temporary orders of stay of proceedings sought herein are granted this application will be rendered nugatory thereby barring the ends of justice from being accorded to the Applicant/petitioner herein.* 23. *That there is an urgent need of a temporary stay of proceedings against the applicant/petitioner and subsequent so as to avoid the imminent disinheritance.* 24. *That substantial loss will result to the Applicant unless the orders sought are granted.* 25. *That the Applicant’s/petitioner’s right to fair hearing is likely to be infringed.* 26. *That this application ought to be allowed in the interests of equity and justice.* 27. In response to the application is the Replying Affidavit Brian Indimu Kibisu who avers the follows: 28. *That I am an adult of sound mind and the respondent herein.* 29. *That I have read the application dated 29th January, 2026 whose contents have further been explained to me by my advocate on record and now wish to respond as follows;-* 30. *That the aforesaid application is devoid of merit and amounts to abuse of the Court process.* 31. *That the aforesaid application has been brought under extreme bad faith with the ulterior motive of defeating Court process and disinheriting me.* 32. *That on 21st March, 2024 the matter herein was referred to Court annexed mediation at the request of the beneficiaries of the deceased.* 33. *That after negotiations all the four beneficiaries recorded and executed a settlement agreement dated 26th July, 2024 which agreement was subsequently adopted by the Honourable Court on 11th November, 2024* 34. *That in the aforesaid agreement it was agreed that I am entitled to 0.5 acres from PIONEER/NGERIA BLOCK 1 (EATEC)/9360 should the applicant fail to exercise the option of buy-out of part of my shares from the estate of the deceased which amount was amicably settled at* ***Kshs. 5,312,00/=*** *together with transfer of Pioneer/Ngeria Block 1 (Eatec)/10685 registered under the applicant registered under the applicant which conditions have never been met.* 35. *That the applicant however has continuously frustrated transmission of the shares of the individual beneficiaries hence the culmination of the application dated 2nd April, 2025 and orders dated 16/7/2025* 36. *That the applicant has adversely dealt with that parcel of land known as Pioneer/Ngeria Block 1 (Eatec)/10685 by harvesting the trees thereon despite the fact that the said parcel of land constitutes part of my share by virtue of the settlement agreement wherein the same had been offered as part of the buy-out* 37. *That in the circumstances the applicant is in blatant breach of the orders she is now seeking to review.* 38. *That it is unconscionable that the applicant is calling upon the Court re-write the terms of the settlement agreement which is binding on all the parties with the ulterior motive of evading enforcement of the consent orders.* 39. *That the applicant has also not demonstrated any fraud misrepresentation or coercion to warrant filing of the present application.* 40. *That the applicant has therefore approached the Honourable Court with unclean hands and is not deserving of the exercise of the discretion of the Honourable Court in her favour.* 41. *That computation of time in so far as buy-out is concerned was expressly indicated in the settlement agreement that the same was to lapse on 28th February, 2026 and thereafter I was entitled to excise 0.5 acres from Pioneer/Ngeria Block 1 (Eatec)/9360 upon non-compliance.* 42. *That it is therefore mischievous and in bad faith for the applicant to seek for orders compelling me to surrender the title for Pioneer/Ngeria Block 1 (Eatec)/9360 and have it registered in the applicant’s name when she has failed to exercise the buy-out option.* 43. *That I reiterate that surrender of the title for Pioneer/Ngeria Block 1 (Eatec)/9360 and registration in the name of the applicant is pegged on full payment of the agreed amount within the agreed timelines which was not done and therefore I am entitled to 0.5 acres from the aforesaid parcel of land as directed and ordered the Honourable Court vide orders dated 16th July, 2025.* 44. *That the applicant is therefore calling upon the Honourable Court to entertain illegalities and disinherit me and this is absolutely untenable.* **Decision** 1. This Court issued and adopted a mediation agreement dated 26th day of July 2024 in the following terms: 2. *The deceased herein was survived by the following beneficiaries;* 3. *Florence Kadali Kibisu-widow* 4. *Valentine Kibisu-daughter* 5. *Victoria Kibisu-daughter* 6. *Brian Indimu Kibisu-son* 7. *That the estate of the deceased is comprised of the following assets;-* 8. *Pioneer/Ngeria Block 1 (Eatec)/9360 measuring 1.308 Ha whose value is Kshs. 67,750,000/=;* 9. *Uasin Gishu/lllula Settlement Scheme/716 measuring 0.1012Ha whose value is Kshs. 3,500,000/=;* 10. *That it is hereby agreed that the total value of the estate of the deceased is Kshs. 71,250,000/=.* 11. *That it is also agreed that the total liabilities of the estate is Kshs. 8,000,000/=(Eight Million Shillings).* 12. *That the net value of the estate of the deceased is hereby agreed at Kshs.63,250,000/=.* 13. *That the shares and entitlement of each beneficiary is therefore Kshs.15,812,500/=from which each beneficiary shall pay ksh1,000,000/= from their shares and pay Tabitha Indimu and Victor Fitschner who are the mother and foster father of the deceased herein respectively and the said Tabitha Indimu and Victor Fitschner shall share the said proceeds equally* 14. *That the estate of the deceased is hereby distributed as follows;* 15. *Uasin Gishu/lllula Settlement Scheme/716 be registered in the name of Brian Indimu Kibisu;* 16. *Pioneer/Ngeria Block 1 (Eatec)/9360 be shared equally by Florence Kadali Kibisu, Valentine Kibisu and Victoria Kibisu on condition that the said 3 beneficiaries buy out the beneficial interest of Brian Indimu Kibisu of Kshs.12,312,500/=in the said property as follows;* 17. *Florence Kadali Kibisu, Valentine Kibisu and Victoria Kibisu shall pay Ksh1,000,000/= to Tabitha Indimu and Victor Fitschner on behalf of Brian Indimu Kibisu* 18. *Immediately transfer Pioneer/Ngeria Block 1 (Eatec)/10685 measuring 0.202Ha registered under Florence Kadali Kibisu and whose value is agreed at Kshs.6,000,000/= in favour of the said Brian Indimu Kibisu;* 19. *Pay the said Brian Indimu Kibisu the sum of Kshs.5,312,500/= in installments as follows;* 20. *Ksh 3,000,000/=on or before 30/7/2025* 21. *Ksh 2,312,500/= on or before 28/2/2026 and in default of any single installment 0.5acres be excised in his favour from Pioneer/Ngeria Block 1 (Eatec)/9360 with an alternative of execution to issue for the entire amount.* 22. *That Brian Indimu Kibisu is not the biological child of Florence Kadali Kibisu and shall not be entitled to any share of the private properties of said Florence Kadali Kibisu.* 23. *That the name of Florence Kadali Kibisu shall be expunged from all the records of Brian Indimu Kibisu.* 24. This mediation agreement was adopted by the Court as a Court judgment which automatically is to result into the Certificate of Confirmation of Grant. However, the parties to this estate have re-litigated severally by filing other applications ignoring the law of succession dictates on transmission of the estate of the deceased. This Court on 16th July 2025 pronounced itself as follows: 25. *As far as this application is concerned and to dispel any doubt in this regard the following orders shall abide, I find that this is an appropriate case to exercise the powers conferred upon this Court by section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. I hereby order that;* 26. *That the administrator to this estate are steering at Section 76 of the Succession Act which provides for grounds under which the appointment of administrators can jointly or severally be revoked for reason of not acting with due diligence to proceed and administer the estate of the deceased, In the same breadth the revocation of the administrators can be carried out by this Court for reason that has persona representative have failed to produce to the Court within the time prescribed under Section 83 (g) the probate account of administration on material particulars of the estate within six months after issuance of certificate of confirmation of grant.* 27. *That by implication an order be and is hereby made that BRIAN INDIMUKIBISU do execute all the appropriate and necessary documents to effect sub divisions, transfer and transmission of the properties to the estate of the beneficiaries.* 28. *That by implication an order be and is hereby made that BRIAN INDIMU KIBISU being one of the administrators or personal representatives duly appointed by this Court is hereby commanded to comply with the law and the various orders issued by this Court at various levels and the administration of the estate to do so within ninety (90) days from today’s date by first convening an all-inclusive implementation status conference of all the beneficiaries with the legal counsels seized of this matter to design a strategic plan to meet the set timelines.* 29. *That the Deputy Registrar of the High Court in exercise of her ministerial powers be part of the convener of the initial conference to ensure compliance with clause (b & c) of this order.* 30. *That in default of compliance by the administrator/personal representative to the orders of transmitting and conveyance of the entire estate to the defined beneficiaries and located shares a revocation* 31. *order of the administrator so appointed shall take effect and in his place the Public Trustee under the supervisory jurisdiction of the Deputy Registrar of the High Court shall commence, to lay out a plan of execution to transmit and implement the decree of this Court on the model of distribution of this estate.* 32. *That the administrator herein or as the case may be the ordained Public trustee and Deputy Registrar shall draw their inspiration from the provisions of Article 159 (2) (C) of the constitution of closing in on any administrative gaps which may arise during implementation of the designed plan on distribution of the estate of the beneficiaries. The purpose of this is to assist the administrators and the Public Trustee/Deputy Registrar at an opportune time to effectively oversight and manage the distribution expeditiously and safeguards the rights of the beneficiaries.* 33. *Each party shall bear its own costs. It so ordered.* 34. This Court orders are to be obeyed and the instant application dated 29th January 2026 is therefore an abuse of the Court process and therefore the Applicant does not qualify for grant of an injunction as provided for in the principles set out in the landmark case of **Giella v Cassman Brown [1973] EA 358**. The guiding principles are an Applicant must establish a prima facie case with a probability of success, show he or she will suffer irreparable injury not compensable by damages and tip the balance of convenience in his or her favor. The core legal principles upon which the Court can exercise discretion are now well settled as demonstrated by the case of **Mrao Ltd. v First American Bank of Kenya Ltd [2003] eKLR,** in which the Court outlined the following guiding principles: * ***Prima facie case*** *meaning the applicant’s material before the Court shows a probable cause of action with a serious question to be tried, not merely a trivial or frivolous claim.* * ***Irreparable Injury:****Refers to harm that is continuous or for which monetary compensation cannot act as an adequate remedy* * ***Balance of Convenience:****The Court assesses which of the parties would suffer greater injustice if the injunction were granted or refused, often deciding against the party whose actions cause more irreversible disruption* 1. In this succession cause from the perspective of the Court the mediation agreement settled every outstanding dispute in so far as inheritance is concerned and subsequent transmission of the estate is concerned. The mediation agreement has not been set aside, and is binding upon the parties. In the Kenyan legal system under Section 59B of the CPA, a signed mediation agreement registered with the Court is final, binding, and enforceable like a judgment in a civil Court. You cannot appeal it, and Courts will only set it aside for fraud or corruption or coercion or mutual mistake. The Kenyan cases defining the principles include *inter alia*: * ***LJY v JKY [2025] KEHC 1797:****The Court held that a mediation settlement agreement, once adopted as an order of the Court, becomes a binding agreement. It cannot be set aside unless the challenging party proves vitiating factors like fraud, misrepresentation, coercion, or undue influence.* * ***Alios Finance Kenya Limited v. Country Farms Limited [2022] KEHC 11012:****An appellate Court affirmed that a trial Court acts incorrectly by trying to grant further injunctions or revisit a matter once a Mediation Settlement Agreement has been adopted. The agreement is final and binding.* * ***In the Matter of the Estate of Kipturgut Arap Cheruiyot alias ... (2025):****The High Court reaffirmed the strict principles of functus officio, dismissing a party's attempt to void a Court-endorsed mediation agreement simply because they changed their mind or desired a full trial later.* * ***Maina v Biruri & another [2022] eKLR:****The Court ruled that if a party wishes to set aside a mediation agreement, they must present recognizable legal grounds. A Court will not rewrite an agreement just because a party later regrets allocations or terms they voluntarily accepted.* 1. If this Court was to allow this application of injunction it would be tantamount to setting aside the mediation agreement through the back door. It is trite law that mediation agreement carries even more legal weight than a consent given its genealogy and the principles governing its process before a neutral facilitator who is a mediator duly accredited by the Court. The distinction between a consent settling a dispute might arise without necessarily being facilitated by a recognized accredited mediator. In the mediation process the decision reached to resolve the dispute belongs to the parties. The mediator in law has no powers to impose an opinion of any kind or character upon the disputants. The question of coercion, fraud or duress might not exist. Although in Kenya’s progressive jurisprudence in enforcement of mediation agreement we have borrowed heavily from the principles governing consent judgments for instance as developed in the following authorities. Thus: **Flora N Wasike vs Destimo Wamboko [1998] KLR KCB Ltd vs Specialized Engineering Co. Ltd [1982] KLR and Board of Trustees National Social Security Fund vs Michael Mwalo [2015] KLR.** It is therefore settled law that mediated settlement agreements holds the same legal weight as a final Court decree or judgment. Once signed by both parties and authenticated by the mediator, it is final, binding and immediately enforceable without the need for fresh litigation. Therefore, as it is with the consent judgement, challenging a mediation agreement is limited to fraud, corruption, or coercion or mutual mistake. Fortunately for this succession dispute there is no such application that it was obtained by corruption of the parties or mediator, or by coercion, duress or fraud. 2. In Kenya, mediators are chosen from accredited panels maintained by Mediation Registrar or recognized desk officer at various court registries. It is a requirement that mediators must meet the prescribed qualification, including training and accreditation. There is no evidence that the mediator who facilitated the mediation agreement was not qualified or accredited by the High Court of Kenya. 3. Mediation in Kenya which is anchored in the Constitution in Article 159(2)(c) and Sections 58, 59 of the CPA has emerged as a pivotal alternative dispute resolution (ADR) mechanism globally, offering parties a voluntary, flexible, and collaborative process to resolve disputes outside traditional court litigation. In Kenya, where the judicial system faces challenges such as backlog and delays, mediation presents a viable solution to expedite the resolution of disputes while reducing the burden on Courts. Central to the effectiveness of mediation is the enforceability of mediated settlement agreements (MSAs), which ensures that parties can rely on negotiated terms without the fear of breach or non-compliance. 4. It should not be lost to the people of Kenya, that mediation is a structured negotiation process where neutral third party, the mediator facilitates communication and assist parties in every dispute before them in reaching a mutually acceptable resolution. The parties to the mediation process retains control over the outcome of their dispute promoting creative resolution tailored to the specific interests and needs. This statutory framework might be distinctively distinguished from the process of consents which may not necessarily be facilitated by a neutral accredited mediator. There is nowhere in the latest litigation that the mediation agreement adopted by this Court is not enforceable and if that were to be the case the reasons for justification have not been availed before this Court. 5. This matter when looked at from the four corners of the litigation landscape the doctrine of *res judicata* under Section 7 of the CPA applies that litigation of this succession cause has been conclusively determined by a competent Court with finality. The Courts in Kenya from the following cases have construed the application of the doctrine of *res judicata*; Thus in: * ***John Florence Maritime Services Limited & another vs. Cabinet Secretary, Transport & Infrastructure & 3 Others (Petition 17 of 2015):*** *The Court emphasized that for res judicata to apply, the matter must have been directly and substantially in issue in a prior suit between the same parties under the same title.* * ***Kenya Commercial Bank Limited v. Muiri Coffee Estate Limited & another (Motion No 42 of 2014):*** *The Court defined res judicata as a doctrine of substantive law, ensuring that once parties' legal rights are judicially determined, the matter cannot be reopened.* * ***Dina Management Limited v. County Government of Mombasa (SC Petition 8 of 2021):*** *This case established precedents for applying res judicata in land ownership disputes and how the apex Court handles prior determinations.* * ***Kenya Railways Corporation & another v. Okiya Omtatah Okoiti & 3 others (SC Application No. 13 & 18 of 2020):*** *The Supreme Court evaluated the application of res judicata in public interest litigation, determining if previous rulings bar subsequent petitions.* 1. It is acknowledged that pursuant to Section 7 of the Civil Procedure Act the Court has the powers to grant summary judgment on a dispute or claim on basis that it has no real prospect of succeeding by dint of *res judicata*. In speaking of the meaning of the doctrine of *res judicata*, the learned writers of **Halsbury’s Laws of England,** 4th edition, Volume 16, paragraph 1527, noted “*that the doctrine is not a technical one applicable only to records but that it is a fundamental doctrine of all Courts that there must be an end to litigation. Ordinarily, it is conveniently treated as a branch of the law of estoppel. It is said by some legal practitioners, however, that res judicata is different from estoppel in the sense that res judicata is a matter of procedure while estoppel is a matter of evidence”*. 2. It is not competent for this Court in this succession cause to entertain the multiplicity of application arising between the same parties so as to review the previous decision not open to appeal. if the mediation agreement was wrong it ought to have been appealed from in due time. The beneficiaries are estopped from re-litigating this estate over and over again without necessarily raising points law requiring the Court’s interpretation. I am of the view that this is what Lord Diplock had in mind in the case of **Thoday v Thoday [1964] P. 181, 198,** in which he stated as follows: *“The second species, which I will call ‘issue estoppel’, is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a Court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the Court has in the first litigation determined that it was not, or deny that it was fulfilled if the Court in the first litigation determined that it was.* 1. The material question in these current proceedings is whether the applicant has established a prima facie case to be granted an injunction. Even though upon assessment that the remedy that is being sought run foul the doctrine of res judicata and issue estoppel. To go even further I also examined the facts closely and the affidavit evidence being relied upon by the Applicant and having taken into account the various views expressed on the subject in the authorities under consideration, I conclude that the application lacks merit and the same is good for dismissal with no orders as to costs. **DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 10TH DAY OF JULY 2026.** **………………………….……….** **R. NYAKUNDI** **JUDGE**