[2025] KEHC 2832 (KLR)
The court found that the objector, Josephine Nkatha, had already participated in and agreed to a consent order that equitably distributed the estate among all beneficiaries, compensating those who lost out on parcel Ntima/Igoki/1369 with larger shares in Ruiri/Rwarera 221. The court held that a consent order has the...
Source-derived case information.
- Citation
- [2025] KEHC 2832 (KLR)
- Parties
- Applicant: John Murrithi Memeu; Applicant: Stephen N J N Kinge; Respondent: Charity Karwirwa; Respondent: Josephine Nkatha; Respondent: Zipporah Kathiri
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 381 of 2008
- Procedural Posture
- Succession Cause / Ruling on Objection to Distribution of Estate Property
- Outcome
- Objection dismissed; parties to abide by the consent order; no order as to costs.
- Judges
- HM Nyaga
- Legal Topics
- Succession, Distribution of Estate, Consent Orders, Intestate Estate, Rectification of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Murrithi Memeu
Applicant
Stephen N J N Kinge
Applicant
Charity Karwirwa
Respondent
Josephine Nkatha
Respondent
Zipporah Kathiri
Respondent
Procedural Posture
Succession Cause / Ruling on Objection to Distribution of Estate Property
Legal Issues
- 1 Whether the objector is entitled to a further share of land parcel Ntima/Igoki/1369 despite a consent order distributing the estate.
- 2 Whether the consent order entered into by all parties, including the objector, can be set aside or reviewed in the absence of fraud or other vitiating factors.
Ratio Decidendi
The court found that the objector, Josephine Nkatha, had already participated in and agreed to a consent order that equitably distributed the estate among all beneficiaries, compensating those who lost out on parcel Ntima/Igoki/1369 with larger shares in Ruiri/Rwarera 221. The court held that a consent order has the effect of a contract and can only be set aside on grounds such as fraud or mistake, none of which were alleged or proven by the objector. The court concluded that the objection was an attempt to revisit and alter the consented distribution without legal basis, and that the consent order should be upheld to ensure finality and equality among the beneficiaries.
Court Disposition
Objection dismissed; parties to abide by the consent order; no order as to costs.
Orders
- The objection by Josephine Nkatha is dismissed.
- The parties are to abide by the consent recorded in court regarding distribution of the estate.
Full Case Text
Judgment text and source record
38 paragraphs
In re Estate of Jackson Kiaira alias Jackson M’kiaira Gacoro alias Jackson M’kiaira Gachoro (Deceased) (Succession Cause 381 of 2008) [2025] KEHC 2832 (KLR) (27 February 2025) (Ruling)
Neutral citation: [2025] KEHC 2832 (KLR)
Republic of Kenya
In the High Court at Meru
Succession Cause 381 of 2008
HM Nyaga, J
February 27, 2025
IN THE MATTER OF THE ESTATE OF JACKSON KIAIRA alias JACKSON M’KIAIRA GACORO alias JACKSON M’KIAIRA GACHORO -DECEASED.
Between
John Murrithi Memeu
1st Petitioner
Stephen N J N Kinge
2nd Petitioner
and
Charity Karwirwa
1st Respondent
Josephine Nkatha
2nd Respondent
Zipporah Kathiri
3rd Respondent
Ruling
1. The deceased herein died on 1st December 2000. Subsequently, a grant of letters of administration were issued to John Murithi Kimeu and Stephen N.J.N. Kienge on 10th January 2009. The grant was confirmed on 8th February 2010 where it only listed one property namely Ntima/Igoki/1369. The grant was rectified on 27th April 2015, and added land parcel No. 221 Ruiri/Rwarera Adjudication Section. The confirmed grant was further rectified on 18th December 2018 and again on 24th October 2019.
2. From the court record, there was an application dated 29th October 2021, which sought a review of the orders issued on 16th December 2022. That application was settled in terms of the consent dated 2/6/2022, specifically in respect to the property No. 221 Ruiri/Rwarera Adjudication Section. The court then ordered that the protest in respect of Ntima/Igoki/1369 to proceed for hearing.
3. The objector, Josephine Nkata Gikandi stated that the deceased died intestate and left two parcels of land namely:- Ntima/Igoki/1389
Ruiri/Rwarera/221 Adjudication Section.
4. It was her proposal that she be given half an acre of the parcel Ntima/Igoki/1369. She did not object to the proposal to distribute the other parcel of land.
5. The Petitioner stated that they found that land parcel No. 1369 had been sold off. It was thus agreed that they give up their share in that land and that their share in Ruiri/Rwarera 221 be increased accordingly. That to that end, she ended up getting 4 acres instead of 3 in that land. Josephine who was to get 2 acres, ended up getting an additional acre. That the meeting by the family resolved that the dispute and any claims in parcel 1369.
6. John Murithi Mumeu stated that at the time the court made a ruling over land parcel No. 1369, in reality that land had been sold off and sub-divided, and other people had developed their property thereon. That it was for that reason that the parties entered into a consent, whereby those who got land at Ntima /Igoki/1369 got less at Ruiri/ Rwarera 221. The daughters including the objector, got bigger shares in the latter to compensate for what was lost in Ntima /Igoki1369. That Josephine who had initially refused to cooperate, did so when the parties appeared before the court.
7. At the close of the objection hearing Ms Gikundi made brief submissions, summing up the matter in dispute. She submits that pursuant to the consent recorded in court, the beneficiaries who got land at plot 1369 got less land at plot 221 but in the end all parties got equal parcels of land. She submits further that the proposal by Josephine will mean demolishing other people’s structures. She thus sought that the court abides by the consent recorded in court.
8. I have looked at the matter before me. Indeed, after the Judgement of the court was delivered, the parties, including the protestor, in order to ensure equality, agreed that those who had gotten land at plot 1369 got less land at parcel 221. Those who did not get land got bigger shares in parcel 221. They then recorded a consent in court.
9. In my view, the proposal by Josephine is an attempt to review the consent order that she fully participated in. It is trite law that a consent order can only be set aside on ground that would justify the setting aside of a contract. This was set out in Flora Wasike v. Destimo Wamboko (1982 -1988)1 KAR 625, where it was held 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."
10. The objector not saying that there was any fraud or other ground that can be raised to review the consent.
11. Her claim is actually an attempt to get a bigger portion of land. The land she ought to have gotten in plot 1369 was compensated by an extra acre in plot 221, given the circumstances on the ground. Indeed, she gets an equal share to the other daughters, who are content with the arrangement.
12. I am therefore of view that the objection by the said Josephine was overtaken by the consent that she subsequently entered into in court.
13. The objection is thus not merited.
14. The parties are to abide by the consent recorded in court.
15. There shall be no orders to costs.
SIGNED, DATED AND DELIVERED AT MERU THIS 27THDAY OF FEBRUARY 2025H.M. NYAGAJUDGE