https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11177

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT SUCCESSION CAUSE NO. 435 OF 2005** **IN THE MATTER OF THE ESTATE OF CHARITY NYAGUTHII GITOI (DECEASED)** **CHARLES NDIRITU GITOI…………………………….…..APPLICANT** **VERSUS** **JACKSON KIANIA GITOI………………………..…1ST RESPONDENT** **JAMES MWANGI GITOI……………………………2ND RESPONDENT** **RULING** 1. Before this Court for determination is the Summons dated **4th November 2025** by which the Applicant **CHARLES NDIRITU GITOI** seeks the following orders:- **“1. THAT the Respondent be ordered to sign the Mutation Forms, Application for Consent of Land Control Board Forms and the Application for Partition and any other necessary documents and avail their Passports size photos, Photo Copies of ID CARDS and the Pin Number Certificates to facilitate conclusion of this matter.** **2. THAT in the alternative the court do authorize the Deputy Registrar to sign all the above stated documents and do order the Land Registrar Nyeri to dispense with the production of Passport Size Photos and Photocopies of Id Cards, Pin Number Certificates of the Respondents and to effect the registrations.** **3. THAT further this Honourable Court be pleased to order the OCS Karatina Police Station to maintain peace and order during partition of Lr No. Iriaini/Kiaguthu/752.** **4. THAT the costs of this application be borne by the Respondent.** 2. The application which was brought under **Rules 49 and 73 of the Probate and Administration Rules** was supported by the affidavit of even date and the Supplementary Affidavit dated **9th December 2025** both sworn by the Applicant. 3. The Respondents **JACKSON KIANIA GITOI** and **JAMES MWANGI** **GITOI** both opposed the application through their Replying Affidavit dated **23rd November 2025**. 4. The application was canvassed by way of written submissions. The applicant filed the written submissions dated **4th February 2026** whilst he 1st Respondent filed written submissions dated **12th March** **2026**. **BACKGROUND** 5. This succession cause relates to the estate of the late **CHARITY NYAGUTHII GITOI alias CHARITY NYAGUTHII MACHARIA** who died intestate on **3rd March 2005**. A copy of the Death Certificate Serial Number **891149** is annexed to the Petition for letters of Administration Intestate dated **29th August 2005**. 6. Following the demise of the deceased grant of letters of administration Intestate was on **6th December 2005** made to **Charles Nderitu Gitoi** (the Applicant). That grant was duly confirmed on **28th May** **2010**. In the Certificate of confirmed grant the only asset of the estate being the parcel of land known as **LR IRIANI/KIAGUTHU/752** (hereinafter ‘the suit land’) was to devolve entirely to the applicant. 7. On **30th January 2017** the Respondents herein filed a summons for revocation of Grant. The parties later entered into a consent regarding the distribution of the estate which consent dated **26th October 2018** was adopted by the court on **18th October 2018**. The terms of the said consent were as follows:- **“IT IS HEREBY ORDERD BY CONSENT THAT:-** 1. **That the Land parcel number Iriani/Kiaguthu/752 be registered in the names of Charles Ndiritu Gitoi and James Mwangi Gitoi in trust for themselves and for the benefit of Agnes Wanjiru Gitoi, Mary Nyawira Gitoi and Jackson Kiania Gitoi**. 2. **That registration in respect of Iriani/Kiaguthu/752 be rectified accordingly.** 3. **That Cost be in the cause.”** 8. The Applicant now complains that his attempts to effect the sub-division and transmission of the estate in line with the consent has been thwarted by the Respondents who have been totally unco-operative and have declined to sign the requisite documents. The applicant prays for orders that the **Hon. Deputy Registrar** of the **High Court** sign the documents on their behalf. 9. The Respondents on their part allege that the mutation was done without their consent. They accuse the applicant of all manner of ills including forgery and fraud. The respondents claim that the suit land is being sub-divided into two (2) portions instead of five (5) portions as was agreed. They further insist that they do not trust the surveyor. They urge the court to dismiss this application. **ANALYSIS AND DETERMINATION** 10. I have considered the application before this court, the reply filed thereto as well as the written submissions filed by both parties. 11. The record clearly shows that by way of a consent the beneficiaries all agreed on how the suit land was to be distributed. The said consent was duly adopted by the court on **18th October 2018**. Upon adoption the consent became binding on all parties and any party who wished to have the consent set aside, varied and/or reviewed ought to have filed an application seeking such orders. To date no such application has been filed. 12. It is trite law that a consent once adopted has the binding force of a contract entered into by the parties and will be enforced as such. A consent may only be set aside on grounds which would warrant the setting aside of a contract e.g fraud, misrepresentation or mistake. 13. In **KENYA COMMERCIAL BANK -VS- SPECIALISED ENGINEERING COMPANY LTD [1982] KLR** the Court stated thus **“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.”** 14. The Respondents have not denied that they have frustrated the transmission of the estate by declining to sign the relevant documents. The Respondent claim that they made a report to DCI Nyeri regarding forgery complaints against the Applicant. They have annexed to the Replying Affidavit a letter dated **19th November 2015**. However in his supplementary affidavit dated **9th December 2025** the applicant has annexed a copy of a letter dated **29th August 2016** (Annexture ‘**N3**’) from the office of the **Director of Public Prosecutions** (ODPP). In said letter the **ODPP** dismissed the allegations of forgery made against the applicant. The Respondents have no other evidence of wrongdoing by the applicant and therefore I dismiss their allegations as baseless. 15. On the whole I find that this application has merit and I hereby make the following orders:- **(i)** **The Respondents are directed to sign the relevant transmission documents and bank forms to facilitate distribution of the estate within fourteen (14) days.** **(ii) In event of failure by the Respondent to comply with order (i) above the Hon. Deputy Registrar of the High Court to sign the relevant transmission documents and bank documents on behalf of the two Respondents.** **(iii) The OCS Karatina Police Station to maintain peace and order during the process.** **(iv) Costs of this application to be met by the Respondents.** **Dated in Nyeri this 22nd day of July 2026.** **…………………………** **MAUREEN A. ODERO** **JUDGE**