In re the Estate of the Late Rosebella Mudavadi alias Rosebella Jerono Mudavadi

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **SUCCESSION CAUSE NO. E004 OF 2025** **IN THE ESTATE OF THE LATE ROSEBELLA MUDAVADI ALIAS ROSEBELLA JERONO MUDAVADI – DECEASED** **AND** **WYCLIFF MUSALIA MUDAVADI ………………………….……….. 1ST PETITIONER** **CATHERINE KILWATSO MUDAVADI …………………..……….. 2ND PETITIONER** **Coram: Justice R. Nyakundi** **M/S Emily & Associates Advocates** **M/S Midikira Advocates LLP** **M/S V. Chokaa & Co. Advocates** **RULING** **Background** 1. This petition was initiated by Wycliff Musalia Mudavadi and Geofrey Kegode Mudavadi on 17th February 2025 in which the following consent under Form 38 was granted for them to exercise powers under Section 66 as read with Sections 82 and 83 of the Law of Succession Act with regard to the matter of the Estate of Rosebella Mudavadi alias Rosebella Jerono Mudavadi. 2. In the course an objection to the making of the grant was raised by the Objector one Catherine Kilwatso Mudavadi, daughter to the deceased filed under Rule 17(1) of the Probate and Administration Rules dated 19th November 2025, the grounds of objection being that: 3. *The Petitioner is unlikely to act in the interest of the Objector because of Petitioner (and other beneficiaries) wish to sell a piece of land belonging to the estate and share the proceeds, whereas the Objector is to object to the sale and would wish that her share of the land be curved out and be transmitted to her.* 4. The legal instrument in question was issued by the Court on 9th July of 2025 detailing as follows: ***IN THE MATTER OF THE ESTATE OF ROSEBELLA MUDAVADI ALIAS ROSEBELLA JERONO MUDAVADI (DECEASED*** ***BE IT KNOWN*** *that on the 9th day of July 2025 Letters of Administration intestate of all the estate of ROSEBEALLA MUDAVADI ALIAS ROSEBELLA JERONO MUDAVADI deceased late of Busali West Location who died domiciled in Kenya on 24th November 2021 which by law devolves to and vests in his personal representative were granted by this Court to Wycliffe Musalia Mudavadi and Geoffrey Kegode Mudavadi of P. O. Box 65 Chamakanga having undertaken faithfully to administer such estate according to law and to render a just and true account thereof whenever required by law so to do.* *Issued by this the High Court/through the Registry at* ***Vihiga*** *this 9th day of July 2025.* 1. It is apparent from the record that Geoffrey Kegode Mudavadi objected to the objector’s motion in an affidavit dated 19th December 2025 in which he asserted as follows: 2. *THAT I am a male adult of sound mind, a co-administrator in the above mentioned Estate of Rosebella Mudavadi alias Rosebella Jerono Mudavadi duly authorized by my co-Administrator, and therefore competent to swear this affidavit.* 3. *THAT the Honourable Court issued us with Letters of Administration dated 9th July 2025 after a gazette notice was published on 26th May 2025.* 4. *THAT prior to being issued with the said letters of Administration, all beneficiaries including the Objector, who were entitled to apply for the same, gave express consent, for letters of Administration to be issued to the Petitioners.* 5. *THAT further all beneficiaries agreed to the filing of the Summons for partial Confirmation of grant dated 28th July 2025 in order to deal with the property known as Transnzoia/Kapkoi/258 situate in Transnzoia County.* 6. *THAT the objector consented to and executed consent agreeing to filing of the Partial Confirmation of Grant and Mode of Distribution.* 7. *THAT prior to proceeding to file these succession proceedings, all the Beneficiaries had agreed to settle on Wycliffe Musalia Mudavadi and myself as the Administrators.* 8. *THAT I am a son of the deceased and built consensus prior to filing of these proceedings in Court.* 9. *THAT It is our view that the Objector’s application will on serve to further delay conclusion of these proceedings.* 10. *THAT I strongly believe that the reasons fronted by the Objector for filing the Application herein are frivolous as all the beneficiaries are to equally share the property known as Trans Nzoia/Kapkoi/258 however none of the other twelve beneficiaries have raised such concern.* 11. *THAT the fears of the Objector have not been demonstrated, has no basis and are indeed premature.* 12. *THAT indeed the Objector has changed her mind to sell her portion of the said property however the other twelve beneficiaries shall proceed with the same after hiving off the Objector’s portion of the land.* 13. In a status conference held before this Court both parties under the leadership of their legal Counsels being Dr. Chokaa and Mr. Midikira compromised the objection proceedings by recording the consent governed by the following provisions of the law being Order 49 Rule 3 of the Civil Procedure Rules and Section 67(2) of the Civil Procedure Act. 14. The principles of sanctity of a consent judgment or order flows from the following decisions: 15. *The Principle of Sanctity of a Consent Judgment* *Once a consent agreement is adopted and recorded as an order of the court, it operates with the same finality as a judgment delivered on its merits. The court cannot rewrite it.* * [*Okore v Wambui (Civil Appeal E012 of 2022) [2025] KEHC 9021*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/9021/eng%402025-06-26/source.pdf)*: The High Court re-affirmed that a court cannot interfere with a recorded consent judgment except in specific circumstances that would afford valid grounds to rescind a formal contract. It also emphasized that Section 67(2) of the Civil Procedure Act creates an absolute jurisdictional bar against appealing against a consent decree. [*[*1*](https://kenyalaw.org/akn/ke/judgment/kehc/2025/9021/eng%402025-06-26/source)*,* [*2*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/9021/eng%402025-06-26/source.pdf)*]* * [*Wanjiru & another v Mutune (Civil Appeal E026 of 2023) [2025] KEHC 12701*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12701/eng%402025-09-09)*: Citing the traditional locus classicus Kenya Commercial Bank Ltd v Specialised Engineering Company Ltd [1982] KLR 485, the High Court held that an order made in the presence of and with the consent of counsel is absolutely binding on all parties.* 1. *Ostensible Authority of Counsel to Record Consent* *A recurring issue before the High Court is whether an advocate can bind their client by recording a consent order without express permission.* * *Gulf African Bank Limited v Realtek (K) Limited & 5 others [2025] KEHC 2689: The High Court applied principles from the Court of Appeal to rule that if an advocate is properly on record, they possess the ostensible authority to compromise a suit on behalf of their client. If the client alleges they were not fully briefed on its content, the court treats this strictly as an internal dispute between the client and their counsel, which does not invalidate the court record.* 1. *Strict Grounds for Setting Aside a Recorded Consent* *A recorded consent can only be discharged or varied if the applicant establishes circumstances that vitiate a contract. These standard grounds are strictly enforced across High Court divisions (e.g., Commercial, Family, Environment, and Land).* * [*RGHS v GT (Matrimonial Cause E018 of 2023) [2025] KEHC 802*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/802/eng%402025-01-23)*: The Family Division of the High Court dismissed an application to alter a consent judgment because the applicant failed to prove elements of coercion or lack of capacity.* * *The Burden of Proof: As summarized by the courts, to set aside an order, an applicant must satisfy the court of the presence of:* 1. *Fraud or collusion.* 2. *Misrepresentation.* 3. *An agreement contrary to public policy.* 4. *Mutual mistake or total absence of material facts.* 1. The doctrine of consent is a foundational legal principle is legally permissible when the affected party voluntarily agrees to it the same spurns several major branches of the law. It also recognizes the autonomy of competent persons that they have an absolute control and right to resolve their disputes under Article 159(2) (c) of the Constitution without recourse to the formal legal system. 2. With regard to this succession dispute, the parties agreed to compromise the objection proceedings by agreeing to the Objector Catherine Kilwatso Mudavadi to be incorporated as a co-administrator to the intestate estate of the deceased in which she would be administer faithfully and with due diligence together with her co-administrator one Geoffrey Kegode Mudavadi. 3. The import of this consent invited the application of the concept of substitution of an administrator although in succession law there is no direct substitution of an administrator who has been duly appointed by the Court and as sanctioned by the legitimate beneficiaries under Section 29 of the Act. The proper procedure of removal of an administrator is clearly spelt out under Section 76 of the Law of Succession Act, which basically fashions the following grounds which weigh in for removal of an administrator who had been earlier on been appointed as per the law established; Thus: * **Breach of Fiduciary duties**: Misappropriation of assets neglecting the estate or failing to act in the best interest of the beneficiaries. * **Failure to Progress the Estate**: Intentionally delaying the application for the confirmation of grant or refusing to distribute assets. * **Incapacity:** The administrator becomes mentally or physically incapable of executing their duties. 1. For those reasons pursuant to Sections 1(A), 1(B), 3, 3(A) and 80 of the Civil Procedure Act as construed with Rule 73(1) of the Probate and Administration Rules and Section 76 of the Law of Succession Act, one Wycliff Musalia Mudavadi appointment as an administrator be and is hereby revoked and in his place one Catherine Kilwatso Mudavadi together with Geofrey Kegode Mudavadi be and are hereby appointed as legal personal representatives to the Estate of Rosebella Jerono Mudavadi with effect from 8th September 2026. 2. The effect of this appointment is for the grant of letters of administration intestate issued by this Court on 9th of July 2025 to be revoked and fresh instruments on the administration of the estate to be issued to the above named administrators under Section 66 as read with Section 76 of the Regulatory Statutory Scheme on the administration of the intestate Estate of the Deceased. Simultaneously with this ruling, the grant of letters of administration intestate stands issued and duly signed for execution of the mandate of the administrators. **GIVEN UNDER MY HAND AND SEAL OF THIS HONORABLE COURT THIS 8TH DAY OF SEPTEMBER 2026.** **……………………………..………** **R. NYAKUNDI** **JUDGE**