https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10554

In re Estate of Methu (Deceased) (Succession Cause 1627 of 2015) [2026] KEHC 10554 (KLR) (Family) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10554 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 1627 of 2015 HK Chemitei, J July 16, 2026 IN THE MATTER OF THE ESTATE OF WAINAINA METHU (DECEASED) Between Virginia Njokabi Mwaura 1st Applicant Monica Njeri Wachira 2nd Applicant Lucy Wangu Gaitho 3rd Applicant and Monica Njambi Wainaina 1st Respondent Milka Njambi Karungu 2nd Respondent Ruling 1.Before me for determination is an application dated 14th December 2024, brought under Rule 49 and 73 of the Probate and Administration Rules. 2.The Applicant prays for orders that:1.Spent;2.Spent;3.Spent;4.This Honourable Court do set aside the Consent dated 8th December 2020 and its consequential orders.5.This Honourable Court do set aside the Confirmation of Grant dated 16th November 2016 and the subsequent rectification thereof.6.The Estate of the late Wainaina Methu (deceased) be administered in accordance with the Mediation report dated 15th November 2016.7.The Confirmation of Grant be issued in compliance with the Mediation report dated 15th November 2016. 3.The Application is supported by the Applicant's Supporting Affidavit dated 14th December 2024. The Respondent opposed the Application by filing a Replying Affidavit dated 31st July 2024. The Applicant subsequently filed written submissions dated 6th March 2026, while the Respondent filed written submissions dated 9th March 2026. Issues For Determination 4.I have considered the application, the affidavit in support thereof, the Replying Affidavit, and the parties' respective submissions. In my view, the following issues arise for determination:a.Whether the Applicant has established sufficient grounds for setting aside the Consent dated 8th December 2020, the consequential orders, and the Certificate of Confirmation of Grant dated 16th November 2016 together with the subsequent rectification thereof.b.Whether the estate of the late Wainaina Methu (deceased) and the Certificate of Confirmation of Grant issued ought to be administered in accordance with the Mediation Report dated 15th November 2016.c.Who should bear the costs of the application. Analysis And Determination 5.Section 47 of the Law of Succession Act, provides as follows:“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient: Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.” 6.On the other hand, Rule 73 of the Probate and Administration Rules states: “Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 7.The above rules give a party leeway to file an application which is not otherwise provided for under the rules and affirms the inherent jurisdiction of the Court to make such orders as may be necessary to meet the ends of justice. 8.In this case, the Applicant is seeking the vacation of the consent order that the parties entered into on 8th December 2020 which consent order was adopted as an order of this Court. 9.The first issue herein therefore is whether this court has powers to vacate the impugned consent order. 10.The Court of Appeal in S M N v Z M S & 3 others [2017] eKLR highlighted the following authorities as an illustration of the approach that should be taken by courts when attending to the issue of whether or not to vacate a consent order. 11.There is the case of Flora N. Wasike vs Destimo Wamboko [1988] eKLR where the Court of Appeal stated as follows:“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 if certain conditions remain to be fulfilled, which are not carried out: see the decision of this Court in JM Mwakio vs Kenya Commercial Bank Ltd Civil Appeals 28 of 1982 and 69 of 1983.” 12.There is also the case of Purcell vs F C Trigell Ltd [1970] 2 All ER 671, Winn LJ said at 676 where the Court stated:“It seems to me that, if a consent order is to be set aside, it can really only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons." 13.In Kenya Commercial Bank Ltd vs Specialised Engineering Co. Ltd [1982] KLR 485, Harris, J held, inter alia, that –“1.A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side." 14.From the above authorities, it is clear that this court has powers to vacate or set aside a consent order. However, it is also clear that a consent order can only be varied or set aside upon proof of certain specific grounds such as where the consent was obtained fraudulently, or in collusion between affected parties. Other grounds for vacation of a consent order include where the consent is contrary to the policy of the Court, or based on insufficient material facts, or based on misapprehension or ignorance of material facts. 15.Thus, the consequent issue for determination is whether the Applicant has laid a basis to warrant this court to vacate the impugned consent order. 16.In this case, counsel for the Applicants and the Respondents, Bikambo & Company Advocates, Manasses Mwangi & Associates and Mwakio Kirwa & Company Advocates respectively, executed the consent dated 8th December 2020 as confirmation that the parties had reached a consent and the consent was adopted as an order of this court. 17.The Applicants contend that they did not instruct their advocates to enter into or file the Consent dated 8th December 2020. In the alternative, they argue that, even if the Court were to find that such instructions were given, the Consent is vague, ambiguous, and internally contradictory, particularly clauses 7 and 8 thereof. 18.Clause 7 and 8 of the consent dated 8th December 2020 provides as follows:“7.The land LR/DAGORETI/MUTUINI/154 be distributed in accordance with the mediation agreement dated 15th November and adopted as the order of this court on 24th November 2016.” 8.The Applicants/objectors herein have no further claims against the Estate of Wainaina Methu.” 19.The Applicants submitted that the above clauses are contradictory, as the Mediation Agreement provides that all the beneficiaries are entitled to inherit the estate, whereas clause 8 of the Consent purports to extinguish the inheritance rights of those same beneficiaries. They therefore contended that the Consent is inconsistent with the Mediation Agreement, incapable of implementation, and ought not to be relied upon by the Court or any of the parties. Accordingly, they urged the Court to set aside the Consent. 20.The Respondents, on the other hand, submitted that pursuant to the Consent dated 8th December 2020, the Applicants, who are sisters of the deceased, voluntarily relinquished their claims to the estate in consideration of a payment of KES 2,600,000. They contended that the said sum was paid to the Applicants on 11th April 2022 and was duly acknowledged by an agreement dated 22nd April 2022. 21.According to the Respondents, the payment demonstrates that the parties fully implemented the Consent and that the Applicants accepted and benefited from its terms. It was therefore their submission that, upon execution and implementation of the Consent, the distribution of the deceased's estate was conclusively settled, and the Applicants cannot now seek to resile from the agreement after having accepted its benefits. 22.The Respondents further submitted that one of the beneficiaries, Kimani Methu, passed away on 15th February 2021, shortly after the rectification of the Grant, and that he was not survived by any dependant. Consequently, the Respondent filed an application dated 28th May 2024 seeking, among other orders, the redistribution of the deceased beneficiary's share to his co-beneficiary, Milka Njambi Karungu. The Respondents contended that it was this application that prompted the present Application, through which the Applicants now seek to set aside the Consent dated 8th December 2020, revoke the Grant, and set aside the Certificate of Confirmation of Grant and its subsequent rectification. 23.The Court of Appeal in Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited & Another [1998] eKLR, cited the case of Brooke Bond Liebig (T) Limited vs Mallya [1975] E.A. 266 where the law in respect of this issues was stated in the following terms at p. 269:“The circumstances in which a consent judgment may be interfered with were considered by this court in Hirani vs Kassam (1952), 19 EACA 131, where the following passage from Seton on Judgments and Orders, 7th edition, Vol.1 p.124 was approved: 'prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them...... and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court..... or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement.” 24.The rule of evidence is clear that “He who alleged must prove”. That is the purport of Section 107 (1) of the Evidence Ac, CAP 80, Laws of Kenya which provides that:“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist” 25.It is evident from the material on record that the present Application is an afterthought. The Applicants voluntarily entered into the Consent dated 8th December 2020, accepted the consideration of KES 2,600,000 in full settlement of their claims to the estate, and acknowledged receipt thereof. Having enjoyed the benefits arising from the Consent, they have not demonstrated any of the recognized grounds upon which the Court may interfere with a consent order 26.Without belaboring the point therefore, I do not find merit in the application and the same is hereby dismissed with costs to the respondents. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 16TH DAY OF JULY, 2026.H.K. CHEMITEIJUDGE, FCIArb.