https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9836

In re Estate of Andere (Deceased) (Succession Cause 190 of 2013) [2026] KEHC 9836 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEHC 9836 (KLR) Republic of Kenya In the High Court at Kitale Succession Cause 190 of 2013 RK Limo, J July 6, 2026 IN THE MATTER OF THE ESTATE OF NETTY KHASANDI ANDERE (DECEASED) Between Florence Ayako Wanyoike 1st Petitioner Florence Mutonyi Andere 2nd Petitioner and Keith Ephraim Andere Objector Ruling 1.This cause relates to the estate of the late Netty Khasandi Andere who died on 18th November 2006 domiciled in Ndalu Bungoma County. She died intestate leaving behind the following dependants;i.Florence Ayako Wanyoikeii.John Stanley Anzaya Andere (deceased) 2.The estate of the deceased comprised that property known as Ndalu Farm measuring 129 acres. 3.Florence Ayako Wanyoike the adminstratrix herein and the respondent petitioned for letters of administration and was issued with the same on 9/4/2014. 4.The record shows that the wife of the late John Anzaya Stanley Andere (deceased), Pamela Florence Mutonyi Andere and her son Keith Ephraim Andere filed an application dated 28/5/2014 seeking to have the grant revoked for reasons inter alia that there was concealment and that they had been left out by the administratrix. 5.The record shows that the parties compromised and entered into a consent which inter alia saw the appointment of two administratrixes namely;i.Florence Ayako Wanyoike andii.Florence Mutonyi Andere 6.The record further shows that on 30/4/2015 Florence Mutonyi Andere through counsel, M/s Ngigi Mbugua & Co Advocates applied for summons for confirmation of grant dated 27/3/2015 and proposed to have the estate distributed as follows;i.Florence Mutonyi – 89 acresii.Florence Ayako – 15 acresiii.Purchasers – 25acres 7.The applicants’ counsel also filed a consent by both Pamela Khasandi and Keith Ephraim Andere. 8.An objection was later filed on 25/5/2015 by Florence Ayako through M/s Kiarie Advocate stating that the summons for confirmation of grant was premature. This made Florence Mutonyi through M/s Ngigi Mbugua to withdraw the summons for confirmation of grant dated 27/3/2015. 9.Florence Ayako then filed protest and proposed that she be given 54.3acres while Florence Mutonyi takes 49.3acres and purchasers be given their respective shares bought. 10.The record shows that matter was resolved on 6/2/2019 before Hon Justice Chemitei who recorded the consent that the estate comprising 108.6acres be divided equally between the two administratrixes namely;i.Florence Ayako Wanyoike – 54.3acresii.Florence Mutonyi Andere- 54.3acresThe hon judge further held that “each administrator will take care of all those claiming under them.” 11.Keith Ephraim Andere, who is the son of Florence Mutonyi Andere has now moved this court vide summons for revocation of grant dated 11/7/2025 substantively seeking for revocation of grant issued to his aunt Florence Ayako Wanyoike and his mother Florence Mutonyi Andere. 12.The grounds upon which he seeks for revocation of grant are listed as follows;a.That the grant was obtained by fraud and concealment in respect to number of beneficiaries and assets comprising the estate.b.That the distribution caused injustice to children of the late John Stanley Anzaya Andere and Florence Ayako.c.That the administratrixes distributed more acreage of land than what is on the ground.d.That the estate herein was held by the deceased and the late John Stanley Andere and that the estate of late John Stanley Andere ought to have been given ½ of the estate. That the remaining half should then have been shared between Florence Ayako and Florence Mutonyi.e.That the estate of John Stanley Andere was discriminated and the beneficiaries of his estate were prejudiced as a result. 13.The applicant Keith Ephraim Andere swore a supporting affidavit dated 11/7/2025 majorly reiterating the above grounds. 14.According to him the respondent Florence Ayako sold her share to Henry Songole (5acres), Rosemary Mutenyo (9 acres) and a church (1 acre) remaining with only 7.81 acres from what she considers her rightful share of 32.81 acres. 15.The respondent filed a preliminary objection dated 21/10/2026 where she objected to the summons for revocation of grant dated 11/7/2025 mainly on the ground that the issues raised in the summons for revocation of grant were resolved through a consent entered between the 2 adminstratrixes and adopted in this cause by Hon Justice Chemitei on 6/2/2019. 16.She submits that there is a subsisting order by a court with respect to confirmation of grant which order has not been reviewed or set aside. She contends that a consent binds the parties and relies on the decision of JGN –vs- DKN (2023) KECA 1463 KLR. 17.She submits that the applicant was duly represented by her mother in the consent and relies on the decision of Mulei & Mulei & Anor (2022) KEHC 13220 (KLR). 18.The respondent contends that this court is now functus officio because the confirmation of grant was done and the estate distributed accordingly. 19.That the issues raised by the applicant were conclusively heard and determined by a competent court and relies on Alexander Njagi Ndambiri –vs- Jane Waguama Njagi & 2 others (2021) KEHC 1148 (KLR). 20.She submits that the subsequent inclusion of the estate herein in the estate of John Stanley Andere vide Bungoma Magistrate’s Court Succession Cause No.E010/2019 was a nullity in law. 21.The 2nd petitioner Florence Mutonyi has opposed the preliminary application raised vide submissions through learned counsel M/s Ashioya & Co Advocates dated 2/2/2026. According to the 2nd respondent the preliminary objection raised by the 1st respondent is factual and requires interrogation of facts to determine it. She submits that a preliminary objection cannot be raised where facts are contested in that regard she relies on the case of Mukisa Biscuits Manufacturing Co Ltd –vs- West End Distributors Ltd (1969) EA 696. According to her the preliminary objection is intended to avoid scrutiny of fraudulent acts by the 1st respondent. 22.She contends that the 1st respondent misrepresented facts by stating that the estate herein comprised the 108.6acres in L.R No.Bungoma/Ndalu/176. 23.She submits that Article 159(2) obligates this court to consider substantive issues other than technicalities In that regard she relies on Raila Odinga & Others –vs- IEBC & Others (2013)eKLR. 24.The applicant has also weighed in by opposing the preliminary objection vide written submissions by learned counsel D.K. Nabulindo & Co Advocates dated 2/2/2026. He contends that the preliminary objection raised requires this court to ascertain contested facts which is contrary to law. He also relies on the decision of Mukisa Biscuit Manufacturing Co Ltd (supra). 25.He points out that the objection raised requires to ascertain whether the deceased owned the entire 108 acres and whether the respondent concealed material facts and whether the consent was obtained through misrepresentation. 26.He submits that the consent order only cancelled the earlier grant and that when the grant is revoked all consequential orders collapse. 27.According to him a consent obtained on the basis of falsehoods cannot stand. He relies on the case of Re-estate of Julius Mimano. 28.He further contends that her application raises contested issues touching on ownership of the estate and concealment of material facts. 29.He contends that a consent cannot be used to sanitize illegalities and relies on the case of Re-estate of Kipsang Choge (deceased) (2020) eKLR. 30.He urges this court to go by the provisions of Article 159(2) (d) which obligates this court to administer justice without undue regard to technicalities. 31.This court has laid out the preliminary objection raised and the responses by both Florence Mutonyi Andere (2nd respondent herein) and Keith Ephraim Andere (the applicant). This court has already given a brief summary of the background of the issues at hand which is whether summons for revocation of grant dated 11/7/2025 is res judicata and or that this court is now functus officio in face of a consent between the respondents herein adopted by this court on 6/2/2019. 32.This court will go straight to the substance of the preliminary objection raised by the 1st respondent which the applicant and his mother the 2nd respondent feels is based on contested facts rather than a pure point of law. 33.To resolve the preliminary objection raised this court is well guided by the provisions of Section 7 of the Civil Procedure Act which encapsulates the principle of finality of decisions made by courts upon adjudication. Section 7 Civil Procedure Act provides;“No court shall try 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 or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 34.It is not contested that the applicant herein and his mother the 2nd respondent herein filed summons for revocation of grant dated 28/5/2014. The grounds raised by the two in that application were inter alia concealment, fraud, falsehood, that they were beneficiaries and significantly that the deceased herein held a joint title deed in respect to L.R No.Bungoma/Ndalu/176 with his son the late John Stanley Andere. 35.It is not disputed that the said application was compromised and/or settled through a consent recorded in court by counsels of both sides and the court duly adopted the consent as the order of this court. 36.It is uncontested fact that the consent distributed the estate comprising Bungoma/Ndalu/176 comprising 108 acres equally between the 1st and 2nd respondents herein with each getting 54.3acres. The court clearly stated each administratrix would take care of those claiming under them. The applicant’s claim on the estate herein certainly fell on his mother’s share who is the 2nd respondent herein. He is a grandson to the deceased herein whose estate comprised that parcel known as Bungoma/Ndalu/176. The court clearly found that he could only claim from his mother’s share. 37.It is uncontested fact that the claimant is a son to the 2nd respondent Florence Mutonyi Andere. It is also an uncontested fact that the 2nd respondent was a party to the summons for revocation of grant dated 28/5/2014. 38.The issue of whether or not the estate herein was jointly owned by the deceased herein and John Stanley Andere (deceased) the father to the applicant and spouse to the 2nd respondent was fully settled via a consent adopted as the order of court on 6/2/2019. That order has not been challenged by way of a review or appeal. It has not been set aside and remains valid, final and binding to the parties in this cause. To that extent this court is functus officio. 39.The applicant cannot be a party to a consent that settles all the differences and 6 years after the matter is settled come back to court to try and reopen the matter afresh for re-litigation. As clearly seen from the record, he was part and parcel of summons for confirmation of grant dated 27/3/2015 and though the application was withdrawn through counsel on 27/5/2015, a similar one was filed on 10/6/2016 by the applicant’s mother. 40.This court finds that the applicant’s claim rests on his mother’s share simply because he is a son to the 2nd respondent and the late John Stanley Andere (deceased). 41.The estate herein comprised in L.R No.Bungoma/Ndalu/176 belonged to the deceased herein exclusively as per the official search and copy of the title deed filed together with the petition herein. It did not belong to the late John Stanely Anzaya Andere (deceased) who was a son to the deceased herein. In any event as observed above that question on ownership of the estate was resolved with finality vide a consent adopted in court on 6/2/2019. 42.The applicant and 2nd respondent have attempted to pour cold water on the said consent implying that the same was either obtained by misrepresentation or that the same was illegal. The parties to the consent and in particular the 2nd respondent however have not challenged the same on grounds of misrepresentation, fraud, duress or coercion, material non-disclosure or any other ground. From 2019 she has not moved the court if at all she was misled and cannot use her son, the applicant to belatedly try to go around it by applying for revocation and holding that revocation will reverse all consequential orders including the consent. This court will not take that bait because it is an abuse of court process. 43.A consent order is as binding as a contract entered in between the parties willingly. A consent therefore has a contractual effect and a court can only set aside on grounds of fraud, coercion, misrepresentation or collusion. In Flora Wasike –vs- Wamboko (1982-88) the Court of Appeal rendered itself clearly on this principle. In the case of Intercountries Importers & Exporters Limited –vs- Teleposta Pension Scheme Registered Trustees & 5 Others (2019) KECA 928 (KLR) the court delved on this subject and referenced the above decision and Brooke Bond Liebig –vs- Mallya (1975) EA where the court held as follows;“The compromise agreement was made an order of the court and thus a consent judgment. It is well settled that a consent judgment can be set aside only in certain circumstances, e.g on grounds of fraud or collusion, that there was no consensus between the parties, public policy or for any such reason as would enable a court rescind or set aside a contract. In this case the parties and their advocates consented to the compromise in very clear terms; they were aware of all material facts………..” (Emphasis added)In Flora Wasike (supra) the court held that a “consent entered in presence of counsels from both sides is binding to all the parties to the proceedings and those claiming under them.” 44.The above decisions cement the principle that once a consent is reached by parties and is adopted in court it binds all the parties to the consent and all claiming under them. The fact that the 2nd respondent has not even tried to challenge the consent is an indication of her awareness of that legal position. She knows she was duly represented by counsel when consent was reached and recorded in court. 45.This court finds that to the extent that the issues being raised were raised in the summons for revocation of grant dated 28/5/2015 and those issues were later compromised and resolved through a consent of the parties herein and adopted in court on 6/2/2019 as order of court, this court is now functus officio because the issues are now res judicata. This court cannot be called to re-open the matter because it is now functus officio. The order adopting the consent was couched in terms that reflects finality to all the issues raised and the matter was concluded more than 6 years ago. 46.The issue raised by the applicant regarding the actual size of the estate that what is distributed was much more than the acreage on the ground is an issue that only the adminstratrixes could raise if at all there was that problem. In any event the consent in my view set clear the principle underpinning the distribution. It was on the basis of 50:50 so if the ground was found to be less or more the principle of distribution would not change. The 1st and 2nd respondents agreed to distribute the estate equally between them and anyone claiming under them would then get their respective share from the 2 adminstratrixes. 47.This court finds that in the premises the preliminary objection raised is well taken. The applicant and the 2nd respondent cannot find a shield under the oxygen Rule in Article 159 (2) (d) of the Constitution. The issues raised by the 1st respondent in her preliminary objection are points of law and contrary to the contention by the applicant and the 2nd respondent, it is purely based on law and uncontested and ascertained facts I have well highlighted above. The summons for revocation of grant filed is an afterthought coming more than 6 years after finalization of the cause.In the premises the preliminary objection is upheld and the summons for revocation of grant dated 11/7/2025 is struck out with costs. DELIVERED, DATED AND SIGNED AT KITALE THIS 6TH DAY OF JULY, 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTRuling delivered in open courtIn the presence ofOdhiambo for 1st petitioner/administratorKeith Adere the applicant in personNabulindo for objectors/applicantsChemosop/Dorcas- court assistants