https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10931

In re Estate of Busienei (Deceased) (Probate & Administration 277 of 2015) [2026] KEHC 10931 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 10931 (KLR) Republic of Kenya In the High Court at Eldoret Probate & Administration 277 of 2015 JRA Wananda, J July 17, 2026 IN THE MATTER OF THE ESTATE OF KIPKEMBOI BUSIENEI (DECEASED) Between Prisca Busienei 1st Objector Julia Busienei 2nd Objector and Rael Chepkering Busienei 1st Petitioner Hosea Kipkerir Busienei 2nd Petitioner Matayo Kipkenei Busienei 3rd Petitioner Stephen Kiprop 4th Petitioner Ruling 1.The background of this matter is that the deceased, Kipkemboi Busienei, died on 3/03/2013 at the age of 82 years old. By the Petition dated 16/07/2016 filed through Messrs Chebii & Co. Advocates, the 1st Petitioners, described as widow, and the 2nd, 3rd and 4th Petitioners, described as sons of the deceased, jointly applied for the Grant of Letters of Administration to manage the estate of the deceased. It was disclosed that in total, the deceased left behind one widow (the 1st Petitioner), and 9 children (6 sons and 3 daughters). The Petitioners also listed one property, namely, the parcel of land described as Turbo/West/Osorongai Block 1 (Chepterwai)/1 measuring 62.74 hectares (hereinafter referred to as “the suit property”) as the only asset comprising the estate. 2.The Grant was then issued on 16/01/2018 to the Petitioners as joint Administrators, who then by the Summons dated 28/05/2021, applied for confirmation thereof and presented their proposed mode distribution of the property. The Summons was however later withdrawn and a fresh Summons for Confirmation dated 22/09/2022 filed through Messrs A.K. Chepkonga & Co. Advocates, the Petitioners’ new Advocates. The matter then came up in Court on 19/01/2024 for Confirmation before me on which date the beneficiaries, the 10 of them, appeared in Court and adopted their said proposed mode of distribution. In view thereof, I confirmed the Grant and directed for issuance of a Certificate of Confirmation, which the parties however do not seem to have extracted as I have not come across a copy in the record. 3.Before the parties left Court, I noted some grumbling from the 1st Objector and when I inquired from her “off-record”, she responded that she may have been misled to sign signed the consents under ignorance. I then informed her of her right to move the Court formally should she have good grounds to do so. 4.The adopted mode distributed the suit property measuring 62.74 Hectares (approximately 155 acres) as follows; 18 acres to the 1st Petitioner (Rael Chepkering Busienei-family matriarch), 20 acres to each one of the 6 sons, 2 acres to the 2nd Objector-daughter (Julia Chelagat Busienei), 4 acres to the 1st Objector-daughter (Prisca Busienei), 2 acres to a third daughter (Ruth Chesang Busienei), and another 2 acres to the African Inland Church (AIC). The subsequently introduced 433 KBC shares, 1050 Standard Chartered Bank shares, and 4 EMOO Foundation shares were then all allocated to the 1st Petitioner 5.Subsequently, however, two of the three daughters, Prisca Busienei and Julia Busienei, through Messrs Menjo & Co. Advocates, as Objectors, filed Summons seeking annulment and revocation of the Grant and also sought other prayers, including, nullification of sub-divisions, sale and transfers made out the property. This is despite the fact that both of them had duly signed the consent accompanying the schedule of distribution that was adopted, and were also present in Court on 19/01/2024 when the Grant was confirmed, and they, too, when asked, expressly confirmed their consent and approval thereof. Although the Summons is dated 5/02/2024, the Certificate of Urgency accompanying it is however dated 6/02/2024. The ground alleged is that the Grant was obtained fraudulently as the Objectors were excluded from the process of filing these proceedings, and they alluded that the reason for their being so excluded was because the Petitioners claimed that under the Nandi customary law, daughters do not inherit property. They also claimed that they were misled into signing the consent and also accused the Petitioners-Administrators of unlawfully sub-dividing and selling off portions of land excised out of the property. 6.However, after discussions, the parties agreed to proceed to Court Annexed Mediation which they did, but which unfortunately failed to bear fruit. The Summons for Revocation was then directed to be heard by way of viva voce trial. By consent, the said Prisca Busienei was also appointed a co-Administrator, in place of the 3rd Petitioner, Matayo Busienei Kipgenei. 7.Upon reviewing the record however, I notice that there may have arisen some confusion amongst the parties on whether the Court was to determine re-distribution of the estate, or whether it is the Summons for Revocation of Grant that was to be first determined. I say so because while at some point the parties took directions to file respective modes of distribution and Submissions to enable the Court determine re-distribution, at another point, they also appear to have taken directions on filing of Affidavits and Submissions in respect to the Summons for Revocation of Grant. 8.The record however reflects that on the latest occasions when the parties appeared in Court, namely, 24/07/2025 and 1/10/2025, although not all of them attended, they only addressed the hearing of the Summons for Revocation, and it is what they took directions on, although none mentioned the fate of the proposed modes of distribution also filed. The record therefore indicates that this Ruling is to be in respect to the Summons for Revocation dated 5/02/2024. However, upon reading the Replying Affidavit filed on behalf of the 1st Objector-Applicant, Prisca Busienei, it is clear that her understanding is that her said Summons for Revocation and the issue of re-distribution were to be subsumed and determined together in one Ruling. I adopt that understanding and therefore proceed to determine both the Summons for Revocation of Grant and the issue of re-distribution in this one Ruling as that appears to be the viable option, which shall also save on time. 9.The respective Advocates notified the Court that they would not be filing any Submissions and would rely on the Affidavits. As such, from the Judiciary Case Tracking System (CTS) online portal, the only 3 pleadings uploaded in respect to the Summons for Revocation of Grant and/or the issue of distribution are the following: Pleading Sworn on Advocates Party Replying Affidavit 9/04/2024 A.K. Chepkonga & Co. 1st Petitioner, Rael Chepkering Busienei Replying Affidavit 24/02/2025 MarkPeter M. Khisa & Co. 1st Objector, Prisca Busienei Affidavit on Mode of Distribution 13/06/2025 A.K. Chepkonga & Co. 1st Petitioner, Rael Chepkering Busienei 10.In her said Replying Affidavit sworn on 9/04/2024, the 1st Petitioner-Administrator, Rael Chepkering Busienei confirmed that the 1st and 2nd Objectors are her daughters, and insisted that the Succession Cause was filed upon consultations among all the beneficiaries, that the Objectors have all along been aware of the same as the Petitioners have all along kept them informed and their input considered. She insisted that the Objectors were present at the meeting in which the family agreed on the mode of distribution, and it therefore came as a surprise when the Objectors claimed that the Grant was obtained fraudulently. She denied that the Petitioners have at any time concealed any facts from the Court or that the Objectors have been excluded from the proceedings or denied their rights. She pointed out that the Objectors were provided for in the mode of distribution presented to the Court and adopted as they, too, were allocated portions of the land, that they willingly signed the consents thereto upon reading and understanding the same, and that they have not presented any evidence of being coerced to sign the consents. She also denied that any sub-division of the land or transfers have been undertaken, and deponed that allowing the Application would be repugnant to good practice and timely administration of justice. 11.On her part, in her said Affidavit on Proposed Mode of Distribution, sworn on 24/02/2025, the 1st Objector, Prisca Busienei reiterated her prayer for revocation of the Grant and its subsequent confirmation on the grounds already set out, and for re-distribution. She then presented her mode of distribution for the suit property as follows; reduction of the 18 acres allocated to the 1st Petitioner (her mother-Rael Chepkering Busienei) to 13 acres, 13.8 acres equally to each one of the 6 sons and 4 daughters (for the late Julia Chelagat Busienei, and the late Truphena Busienei, she proposed that their allocation be made to their respective estates), and finally, 2 acres to the African Inland Church (AIC). She did not interfere with the 433 KBC shares, 1050 Standard Chartered Bank shares, and 4 EMOO Foundation shares all allocated to the 1st Petitioner (her mother). 12.In response, the 1st Petitioner-Administrator, Rael Chepkering Busienei, in her Affidavit on Proposed Mode of Distribution sworn on 13/06/2025, then presented a slightly varied proposal from the one she had presented under the Summons of Confirmation of Grant, and which was adopted by the Court. In respect to the suit property, she now proposed allocation as follows; increase of her initial 8 acres to 18 acres, retention of the 20 acres to each of the 6 sons, complete cancellation of the 2 acres allocated to the 2nd Objector-daughter (Julia Chelagat Busienei) and her complete removal from the list of beneficiaries (apparently, Julia Chelagat Busienei had since died) increase of the 4 acres allocated to the 1st Objector-daughter (Prisca Busienei) to 8 acres, increase of the 2 acres allocated to the third daughter (Ruth Chesang Busienei) to 5 acres, and increase of the 2 acres allocated to the African Inland Church (AIC) to 5 acres. In respect to the 433 KBC shares, 1050 Standard Chartered Bank shares, and 4 EMOO Foundation shares, she retained the whole allocation to herself. Determination 13.The issue that calls for determination in this matter is basically; “whether the Court should revoke the Grant issued herein and set aside its subsequent confirmation thereof, and then proceed to re-distribute the one parcel of land comprising the estate of the deceased”. 14.Revocation of Grants is governed by Section 76 of the Law of Succession Act which provides as follows:“Revocation or annulment of grantA grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any Interested Party or of its own motion—(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.” 15.The sub-section relied on by the Objectors has not been disclosed. However, as aforesaid, the ground alleged by the Objectors as the foundation for the Application for revocation is that the Grant was obtained fraudulently as they were excluded from the process of filing these Succession proceedings, and that their being left out was because the Petitioners claimed that under the Nandi customary law, daughters do not inherit property. They also claimed that they were misled into misunderstanding the purpose and/or effect of the consent they signed. Guessing wildly therefore, I would speculate that the Objectors have come under sub-Sections (a) and (b) above, that is, that the orders were allegedly obtained fraudulently by concealment of material facts, and thus that the proceedings were generally defective. 16.Section 76 above was expounded upon by W. Musyoka J, in the case of Re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR, in which he stated as follows:“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.” 17.In this case, the Petition dated 16/07/2015 was accompanied by a Consent thereto expressly signed by the beneficiaries, among them the two Objectors. The Summons for Confirmation of Grant dated 8/09/2022, 7 years later, is also accompanied by a Consent thereto expressly signed by the beneficiaries, including, again, the two Objectors. Further, as already stated, at the confirmation of the Grant on 19/01/2024, after another 1 year and 4 months, the beneficiaries, including the two Objectors, appeared before me in person and each one of them separately approved or consented to the schedule of distribution that was presented to Court. I loudly informed the beneficiaries of the effect of the consents they had given and each one confirmed his/her full understanding. Only after I had individually inquired from each one of them, including the two Objectors, and receiving their express individual consent and/or approval, did I then adopt the schedule as presented, and confirmed the Grant. 18.With the above state of affairs, how can the Objectors now turn around and claim that they were excluded from the whole process, all the way from the filing of the Petition? The Objectors are clearly only being mischievous and it makes me wonder whether the Advocate who drafted the Objection even bothered to first peruse the Court record before drawing and filing the pleadings. There being proof that they fully and, at all times, participated in the process, at what point then did they suddenly, after conclusion of the whole process, realize that they were allegedly excluded from inheritance because of their gender? What about the 4 acres, and 2 acres that they were allocated, respectively, respectively? How were they were allocated those portions if the Petitioners held the view that daughters cannot not inherit? From the proposal they have presented, it is clear that the Objectors’ only grievance is that they were allocated lesser shares than their brothers. If that is so, then it is now too late for them to ask the Court to re-visit the distribution since they fully consented to the same. The distribution adopted was therefore a consent order, which cannot be changed simply because one party has subsequently had a change of mind, or as an afterthought. 19.It is indeed settled that a consent, once adopted as an order of the Court, becomes a binding agreement between the parties, and cannot be set aside unless it is it proved that there are justifiable grounds to warrant setting aside. Such vitiating factors are similar to those applicable in setting aside of a contract and would basically be limited to fraud, misrepresentation, mistake, and coercion/undue influence, or if the agreement is found to be contrary to the policy of the Court. In reiterating this principle, the Court of Appeal, in the case of Board of Trustees National Social Security Fund versus Micheal Mwalo [2015] eKLR, stated as follows:“The judgment arose from a Consent of the parties to the suit. The law pertaining to setting aside of Consent judgments or Consent orders has been clearly stated. A Court of law will not interfere with a Consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. To impeach a Consent order or a Consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the policy of Court.” (emphasis mine). 20.The above principle was restated in the case of Flora N. Wasike v Destimo Wamboko [1988] eKLR in which, in which Hancox, JA, observed that:“It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside or certain conditions remained to be fulfilled which are not carried out” 21.The same was also affirmed by Court of Appeal, in the case of S M N vs. Z M S & 3 others [2017] eKLR, in the following terms:“Generally, a court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. The factors touted for impeaching the consent in this matter were fraud and collusion. It is also alleged that counsel had no authority to enter into the consent. The onus of proving those assertions to the required standard was on the appellant. They are serious imputations bordering on crime and therefore the burden of proof is of necessity slightly higher than on a balance of probability but perhaps not beyond reasonable doubt.” 22.Generally, therefore, a consent order is binding and the Court may only be persuaded to set it aside if there is evidence that some material fact not in a party’s possession was invariably withheld or misrepresented from him, or he was mistaken about its import, none of which has been demonstrated in this case. I therefore find no justification whatsoever to set aside the mode of distribution entered into by consent by the beneficiaries. The same also applies to the varied mode of distribution presented by the 1st Petitioner. She too, is caught up with the same legal principle and cannot also turn around. The consent fully addressed the issue of distribution of the one property comprising the estate, and in the absence of any demonstration that any beneficiary entered into the consent by way of fraud, or collusion or that the agreement was contrary to the policy of the Court, this matter must now to end here. 23.For the same reasons as above, I also reject the prayer for revocation of the Grant under Section 76 of the Law of Succession Act. It is generally agreed that the power of revocation of a Grant is discretionary and must be exercised judiciously and only on sound grounds. To this end, Mwita J in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] eKLR, stated as follows:“13.Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” 24.In this case, it is clear that the Objectors also approved the filing of the Petition by signing the relevant consent. Their claim that they were excluded from the process or that they were not aware of its filing, is therefore false, and a blatant lie. In exercising my discretionary power under Section 76 judiciously and on sound grounds, not whimsically or capriciously, and taking into account the interests of all beneficiaries to ensure that the action taken will be for the interest of justice, I have no hesitation in finding that it has not been established or demonstrated that there is any reason to revoke the Grant. 25.The allegation that the Petitioners have also sub-divided and/or transferred portions excised out the suit property has also not been supported with any evidence. It also therefore fails. Final Orders 26.For the foregoing reasons, I rule and order as follows:i.The Objectors’ Summons dated 5/02/2024, as accompanied with the Certificate of Urgency dated 6/02/2024, is hereby dismissed in its entirety.ii.Accordingly, the prayers for annulment or revocation of the Grant issued herein, or nullification of the alleged or unidentified sub-division or transfers of parcels of land out of the suit property, Turbo/West/Osorongai Block 1 (Chepterwai)/1 are rejectediii.The fresh or varied respective modes of distribution presented by the respective parties are also rejected with the effect that the mode of distribution adopted by the Court on 19/01/2024 still stands and is hereby retained.iv.As this is a family matter, each party shall bear his/her own costs. DELIVERED, DATED AND SIGNED AT ELDORET THIS 17TH DAY OF JULY 2026………..…………..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Ms. Too h/b for Mr. Biwott for the Objectors-ApplicantsMs. Lugwe for the 1st and 4th PetitionersN/A for other partiesCourt Assistant: Brian Kimathi