https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11443

In re Estate of Mbiti (Deceased) (Succession Cause 141 of 2008) [2026] KEHC 11443 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11443 (KLR) Republic of Kenya In the High Court at Nyeri Succession Cause 141 of 2008 DKN Magare, J July 23, 2026 IN THE ESTATE OF GICHURU MBITI (DECEASED) Between Ann Nyaguthii Gichuru Applicant and Johnson Ngatia Warutere Respondent Ruling 1.There does not appear a shortage of tricks in this matter. The matter was filed way back on 13.03.2008. The petitioner indicated that there were three beneficiaries and the deceased left behind land parcel number Ruguru/Kiamariga/2174. The certificate of confirmation of grant was issued on 6.2.2009 for the said parcel to be inherited by Johnson Ngatia Warutere. At that time, there was a restriction registered by the applicant herein, Ann Nyaguthii Gichuru on 10.12.1999. 2.There was an application filed on 18.2.2009 for removal of the caution. The ground was that Ann Nyaguthii Gichuru was not a beneficiary of the said parcel. There was a lull until 3.10.2024 when summon for revocation were filed. 3.The petitioner/respondent explained that he was under impression that he was to deal with the mother’s share only, and left out the share given to the second house, that is, land parcel number Ruguru/Kiamariga/2175, where Ann Nyaguthii Gichuru belongs. 4.In the summons for revocation, it appears that there is a suit between the parties being Karatina SRMC ELC E014 of 2023, over land parcel number Ruguru/Kiamariga/3072, a subdivision of land parcel number Ruguru/Kiamariga/2174. The main ground was that the deceased had two houses but the second house was left out. 5.On 14.11.2025, this court directed that the matter proceeds by way of viva voce evidence. The applicant was to be the plaintiff while the respondent the defendant. I directed all beneficiaries to be served. When the matter came for hearing on 23.02.2026, three beneficiaries attended court, that is, Ann Nyaguthii Gichuru, Johnson Ngatia Warutere and Robert Wahome. As usual they signed the attendance role. It was the only matter for hearing. 6.Mr. Githiuru for the Respondent, Johnson Ngatia Warutere, indicated that they had a consent to record. Before recording I listened to the tenor and had the same interpreted to Kikuyu and Kiswahili. There was no objection to the same. The consent was confirmed by the advocate for Ann Nyaguthii Gichuru. The consent was to the effect that:a.The certificate of confirmation dated 6.2.2009 be amended to include land parcel number Ruguru/Kiamariga/2175 measuring 4.5 acres.b.We take directions thereon on distribution.c.The first house has no claim on land parcel number Ruguru/Kiamariga/2175.d.The first house’s claim is on land parcel number Ruguru/Kiamariga/2174, which is already subdivided and closed. 7.This was adopted as an order of the court. The court listed the matter for mention for the beneficiaries for the second house to have a schedule of distribution. The said Ann Nyaguthii Gichuru changed advocates and then filed the application for revocation. Without leave, they also filed a further affidavit in respect of the application that was already dealt with by consent. Analysis 8.The only issue in the matter, is whether to set aside the consent between the parties. To be able to address the matter, historical context is crucial. The disputation has always been between the two persons in court. Though I ordered the attendance of all beneficiaries, it is the parties who attended. The consent settled the inclusion of the second land, that is, land parcel number Ruguru/Kiamariga/2175, that is, for the second house. 9.The parameters of setting aside a consent order have long been settled. A consent order is like a contract. It can only be set aside on the same grounds as the setting aside a contract. In this case, the applicant was in court. She was represented. She was explained to. It appears that there was an unknown third parties who made her change her mind. She blames the signing of the attendance sheet stating that she did not understand that she was signing a consent. This is not true. She did not sign any document. It is her advocate who confirmed the contents of the consent. In the case of Wasike v Wamboko [1985] KECA 149 (KLR), the court of appeal [Hancox JA, Nyarangi & Platt Ag JJA], set out the parameters of setting aside a consent order as follows:5.It is now settled law that a consent judgment or order has contractual effect and can only be set side 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 J M Mwakio v Kenya Commercial Bank Ltd Civil Appeals 28 of 1982 and 69 of 1983. In Purcell v F C Trigell Ltd [1970] 2 All ER 671, Winn LJ said at 676: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, and I see no suggestion here that any matter that occurred would justify the setting aside or rectification of this order looked at as a contract.”6.Both Lord Denning MR and Buckley LJ appeared to agree with this statement, moreover, that there was very little distinction between interlocutory orders (which was the kind of order there being considered) and final orders in this respect. Lord Denning thought (at 675) that a consent order of a judge would, subject to the Rules, be appealable with leave, and there is express provision for this in S 31 (1) (h) of The Supreme Court of Judicature (Consolidation) Act 1925. There is no similar provision in Kenya. This decision was followed in Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 All ER 745, per Buckley LJ at 751, and in Siebe Gorman & Co v Pneupac [1982] 1 WLR 185, per Lord Denning MR at 189 and Eveleigh LJ at 191.7.It seems that the position is exactly the same in East Africa. It was set out by Windham J, as he then was, and approved by the Court of Appeal for East Africa, in Hirani v Kassam (1952) 19 EACA 131, at 134, as follows:“The mode of paying the debt, then, is part of the consent judgment. That being so, the court cannot interfere with it except in such circumstances as would afford good ground for varying or rescinding a contact between the parties. No such ground is alleged here. The position is clearly set out in Setton on Judgments and Orders (7th edn), vol 1, P 124, as follows:“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 the consent was given without sufficient material facts, or in general for a reason which would enable the court to set aside an agreement.” 10.This passage was followed by the court of appeal in the case of Brooke Bond Liebig Ltd v Mallya [1975] EA 266 at 269 in which Law Ag P said:“A court cannot interfere with a consent judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties.” 11.Parameters of setting aside a consent order were addressed in the case of Zipporah N. Gichia v Simon Chege [2019] KECA 253 (KLR), where the court appeal posited as follows:i.Platt, Ag. JA. succinctly put it in the case of Flora N. Wasike vs Destimo Wamboko [1988] eKLR where the facts were similar to those in the instant case;ii.“It is not necessary nor desirable for us to enter into an adjudication of the right or wrongs of the consent judgment. It is clear from section 67 (2) of the Civil Procedure Act that no appeal can lie from a consent judgment. The proper course for the appellant to take is to set aside the consent judgment by way of a Review by the High Court, or by some process in that court, according to the advice she receives”. 12.The advocates for the parties recorded a consent in court, partly allowing the application for revocation. The order was made in the presence of the parties. 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. The applicant and their lawyer knew the consent they were recording. They obtained a benefit from the consent. It was not skewed. There are no grounds shown to exist that can set aside a consent. There was no fraud, mistake, illegality. In the case of Pan Africa Staff Sacco Society Ltd v Muchungu; Vusha Onembe & Mambiri Advocates (Interested Party) [2023] KEHC 21465 (KLR), A. Ongeri J, held as follows:In the case of Hirani v Kassam [1952], 19EACA 131, the Court of Appeal with approval quoted the following passage from Seton on Judgments and Orders, 7th edition, Vol.1 p.124 as follows:“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."16.The Court of Appeal in the case of Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd [1982] KLR P. 485 held that:“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 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. In the same case the Court further held that:“An advocate has general authority to compromise on behalf of his client as long as he is acting bona fide and not contrary to express negative direction. In the absence of proof of any express negative direction, the order shall be binding”. 13.This was also buttressed in the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR, where the court of appeal [Makhandia, Ouko & M’Inoti, JJ.A] held s follows;… a consent judgment or order can only be set aside on the same grounds as would justify the setting aside a contract, for example on grounds of fraud, mistake or misrepresentation. (See Brooke Bond Liebeg (T) Ltd v. Mallya [1975] EA 266; Flora Wasike v. Destimo Wamboko [1988] KLR 429, and Kenya Commercial Bank Ltd v. Benjoh Amalgamated & Another, CA No. 276 of 1997). 14.In a more succinct matter, in the case of Langat v Co-operative Bank of Kenya Ltd [2017] KECA 152 (KLR), the court of appeal [PN Waki, MS Asike-Makhandia & W Ouko, JJA] addressed the question of setting aside a contract, when it is unconscionable as follows:This Court has never shied away from interfering with unconscionable contracts. In Kenya Commercial Finance Company Ltd vs Ngeny & Another[2002]1KLR it stated:“The court will not interfere where parties have contracted on arms-length basis. However, by its equitable jurisdiction, this court will set aside any bargain which is harsh, unconscionable and oppressive or where having agreed to certain terms and conditions, thereafter imposes additional terms upon the other party. Equity can intervene to relieve that party of such conditions.”45.Halsbury’s Laws of England Volume 22 (2012) 5th Edition at Paragraph 298 states of unconscionability:“Even in the absence of duress of persons or undue influence, there has long been jurisdiction to interfere with harsh and unconscionable transactions in several different areas of the law: for instance, in respect of salvage agreements; or against contractual penalties, forfeiture of mortgages, extortionate loans or expectant heirs. ... The jurisdiction of the courts to set aside is based on unconscientious conduct by the stronger party; relief will not be granted solely on the grounds that the transaction is unfair or improvident."46.Finally on unconscionability, this Court [PN Waki, MA Warsame & SG Kairu, JJA] in the case of Muiruri (Being the administrator of the Estate of the Late Joseph Muiruri Gachoka - Deceased) v Bank of Baroda (Kenya) Ltd [2014] KECA 319 (KLR) stated:36.Nevertheless, courts have never been shy to interfere with or refuse to enforce contracts which are unconscionable, unfair or oppressive due to a procedural abuse during formation of the contract, or due to contract terms that are unreasonably favourable to one party and would preclude meaningful choice for the other party. An unconscionable contract is one that is extremely unfair. Substantive unconscionability is that which results from actual contract terms that are unduly harsh, commercially unreasonable, and grossly unfair given the existing circumstances of the case (See Black’s Law Dictionary, 9th Edition, Gardner, Ed.). 15.This was not a mistake of counsel, as addressed in the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR), where the court of appeal [Platt, Gachuhi & Apallo JJA ] stated as follows:I think a distinguished equity judge has said:“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.”I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs 16.It is curious that the applicant is relying on rights of others, who did not bother to raise any issue. Given the fact that there was no mistake of counsel, and the consent was not impeached, the summons dated 7.05.2026 are hereby dismissed. 17.This leaves the issue of costs, which are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 18.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 19.Given the circumstances of the case, each party to bear their own costs. The second house shall file the schedule for confirmation within 14 days. Confirmation on 02.11.2026. Determination 20.In the circumstances, I make the following orders:a.The summons dated 7.05.2026 is hereby dismissed.b.The second house shall file the schedule for confirmation within 14 days.c.Confirmation on 11.11.2026. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 23RD DAY OF JULY THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX.Ruling delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of; -Ms. Waichinga for the ApplicantMr. Githiru for the RespondentCourt Assistant – Timothy