https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11997

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **FAMILY DIVISION** **HIGH COURT FAMILY APPEAL NO. E002 OF 2025** **BETWEEN** **JOSEPH KAMAU GITAU APPELLANT** **AND** **GEORGE GITAU RESPONDENT** *(Being an appeal against the Ruling of Hon. Gethi Kibiru (Chief Magistrate) delivered on 10th December 2024 in Kiambu Chief Magistrate's Court Succession Cause No. 579A of 2016, In the Matter of the Estate of Veronica Heta Gitau (Deceased))* **JUDGMENT** **Introduction** 1. This appeal arises from the ruling of the Chief Magistrate's Court at Kiambu delivered on 10th December 2024 dismissing the appellant's summons dated 5th July 2021. By that application, the appellant sought to set aside the proceedings and consent order recorded on 13th July 2018 in succession proceedings relating to the estate of the late **Veronica Heta Gitau (Deceased)**. 2. The learned Chief Magistrate declined to grant the orders sought, holding that the appellant had failed to establish any of the recognised legal grounds upon which a consent order may be impeached. Aggrieved by that determination, the appellant lodged the present appeal. 3. At its core, this appeal does not concern the distribution of the deceased's estate. Rather, it concerns whether the consent recorded before the subordinate court on 13th July 2018 was liable to be set aside on account of fraud, misrepresentation, want of authority, mistake or any other legally recognised ground. The Court is therefore called upon to determine whether the learned Chief Magistrate properly exercised his discretion in declining to interfere with that consent. **Background** 1. The dispute arises from succession proceedings relating to the estate of **Veronica Heta Gitau (Deceased)**. Differences emerged among the beneficiaries regarding the administration of the estate, prompting the appellant to lodge an objection to the respondent's petition for letters of administration. The objection proceeded to hearing before the subordinate court. 2. The record shows that on **13th July 2018**, the matter came up for the continuation of the hearing of the objection proceedings. Before the hearing could proceed, counsel appearing for the appellant requested that the matter be stood over to enable the parties to explore an amicable settlement. The learned trial magistrate acceded to that request. 3. Following negotiations involving the beneficiaries and their respective advocates, the parties returned to court later the same day. Counsel informed the court that a settlement had been reached and proceeded to record the agreed terms. The consent provided, among other things, for the appointment of the appellant and the respondent as joint administrators of the estate and contemplated the subsequent filing of a summons for confirmation of grant incorporating the beneficiaries' agreed mode of distribution. 4. Of particular significance is that the proceedings do not end with counsel recording the consent. The contemporaneous court record shows that the learned magistrate invited the parties themselves to confirm whether the consent reflected their agreement. The proceedings expressly record that the appellant personally confirmed the consent before it was adopted as an order of the court. The remaining beneficiaries similarly confirmed their acceptance of the agreement. 5. The handwritten minutes prepared during the negotiations are consistent with the proceedings recorded before the court. They identify the beneficiaries who attended the meeting, enumerate the assets comprising the estate, record the resolutions reached concerning the administration of the estate and the proposed mode of distribution, and culminate in the agreement subsequently presented to the court as a consent. 6. Nearly three years later, the appellant moved the subordinate court by the summons dated 5th July 2021 seeking to set aside the proceedings and consent recorded on 13th July 2018. He contended that his advocate acted without authority, that he merely signed blank papers believing they were intended to confirm attendance at the meeting, that he did not participate in the negotiations culminating in the agreement, and that the consent had been procured through fraud and misrepresentation. 7. The respondent opposed the application, maintaining that all the beneficiaries participated in the negotiations, voluntarily reached a consensus, signed the handwritten minutes reflecting that consensus, and thereafter personally confirmed the consent before the court. It was therefore contended that the application was an afterthought intended to avoid the consequences of a settlement voluntarily entered into. 8. Upon considering the rival affidavits and submissions, the learned Chief Magistrate found that the appellant had failed to prove fraud, misrepresentation, mistake, want of authority or any other recognised ground capable of vitiating the consent. The application was consequently dismissed with costs, giving rise to the present appeal. **The Appeal** 1. The memorandum of appeal contains thirteen grounds of appeal. Stripped to their essence, the appellant contends that the learned Chief Magistrate erred both in law and in fact by declining to set aside the consent recorded on 13th July 2018. It is argued that the trial court failed to properly evaluate the evidence, failed to appreciate that the appellant's former advocate acted without authority, failed to find that the consent was procured through fraud and misrepresentation, misapprehended the effect of the handwritten minutes and the court proceedings, and improperly exercised its discretion in dismissing the appellant's application. 2. The appellant accordingly prays that the appeal be allowed, the ruling delivered on 10th December 2024 be set aside, the consent recorded on 13th July 2018 be vacated, and the objection proceedings be remitted to the subordinate court for hearing before a different judicial officer. **The Parties' Submissions** 1. Learned counsel for the appellant submitted that the learned Chief Magistrate failed to properly appreciate the evidence demonstrating that the appellant neither authorised his advocate to compromise the objection proceedings nor participated in the negotiations that culminated in the consent. Counsel maintained that the appellant merely signed blank papers believing they related to attendance at the meeting and subsequently discovered that those signatures had been used to support a settlement to which he had never agreed. It was therefore submitted that the consent was procured through fraud and misrepresentation and ought to have been set aside in accordance with the settled principles governing consent judgments. 2. The respondent supported the ruling of the trial court, submitting that the appellant failed to discharge the burden of proving any recognised ground capable of impeaching a consent order. Counsel argued that the contemporaneous proceedings unequivocally record the appellant personally confirming the consent before it was adopted by the court and that the handwritten minutes prepared during the negotiations are entirely consistent with that record. It was further submitted that the allegations of fraud, misrepresentation and want of authority were unsupported by any independent evidence and were incapable of displacing the evidential weight of the contemporaneous judicial record. 3. Having considered the rival submissions, the record of the subordinate court and the impugned ruling, this Court is now required, as a first appellate court, to undertake its own independent evaluation of the evidence before determining whether the learned Chief Magistrate erred in declining to set aside the consent recorded on 13th July 2018. **Duty of the First Appellate Court** 1. This being a first appeal, the duty of this Court is well settled. It is required to reconsider, re-evaluate and re-analyse the entire evidence that was placed before the trial court and arrive at its own independent conclusions. In undertaking that exercise, however, the Court must bear in mind that it neither saw nor heard the witnesses testify and should therefore give due allowance for that disadvantage. 2. In **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, the Court of Appeal stated that a first appellate court is under a duty to reconsider the evidence, evaluate it itself and draw its own conclusions, while bearing in mind that it did not have the opportunity of seeing and hearing the witnesses. Similarly, in **Peters v Sunday Post Ltd [1958] EA 424**, it was held that although an appellate court has jurisdiction to review the evidence in order to determine whether the conclusions reached by the trial court should stand, it should exercise that jurisdiction with caution, particularly where the findings are based upon the credibility of witnesses. 3. Mindful of those principles, this Court has undertaken a fresh and exhaustive evaluation of the application dated 5th July 2021, the supporting and replying affidavits, the proceedings of 13th July 2018, the handwritten minutes prepared during the negotiations, the impugned ruling, the memorandum of appeal and the rival submissions by counsel. Although this Court ultimately reaches the same conclusion as the learned Chief Magistrate, it does so upon its own independent assessment of the evidence and the applicable law. **Issues for Determination** 1. The memorandum of appeal contains thirteen grounds. Upon a careful consideration of those grounds, the record of appeal and the submissions by counsel, it is evident that they substantially raise one central question: **whether the learned Chief Magistrate erred in declining to set aside the consent order recorded on 13th July 2018.** 2. That central question gives rise to the following issues for determination: 3. ***What are the legal principles governing the setting aside of a consent judgment or order?*** 4. ***Whether the appellant established fraud, misrepresentation, mistake, want of authority or any other legally recognised ground capable of vitiating the consent recorded on 13th July 2018.*** 5. ***Whether the learned Chief Magistrate misdirected himself in dismissing the appellant's application.*** 6. ***What orders should this Court make, including on the question of costs?*** 7. The Court proposes to determine those issues sequentially. **The Applicable Law on Consent Judgments** 1. The law governing the setting aside of consent judgments and orders is settled. A consent order is not merely a procedural compromise; it is an agreement between the parties endorsed by the court and derives its binding force from both the consensus of the parties and the sanction of the court. Consequently, a consent order cannot be set aside merely because one of the parties subsequently changes his mind or becomes dissatisfied with the bargain reached. 2. In **Hirani v Kassam (1952) 19 EACA 131**, the former Court of Appeal for Eastern Africa held that a consent judgment may only be interfered with in circumstances that would justify the setting aside of a contract, such as fraud, collusion, illegality, mistake or where the agreement was entered into in ignorance of material facts. 3. That principle has consistently been applied by Kenyan courts. In **Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266**, the Court emphasised that a consent judgment possesses contractual effect and may only be varied or set aside upon grounds that would justify rescission of a contract. 4. The Court of Appeal reaffirmed that position in **Flora N. Wasike v Destimo Wamboko [1988] eKLR**, where it observed that a consent judgment can only be impeached upon proof of fraud, collusion, misrepresentation, mistake or any other ground which would entitle a court to set aside a contract. 5. Equally settled is the law regarding the authority of advocates. In **Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd [1982] KLR 485**, the Court held that an advocate acting within the apparent scope of his authority may compromise litigation on behalf of a client, and a consent entered by such advocate is ordinarily binding unless it is demonstrated that the advocate lacked authority and that sufficient legal grounds exist for setting aside the consent. 6. The thread running through those authorities is that the law attaches considerable finality to consent judgments. That finality serves an important public purpose. It promotes the amicable settlement of disputes, preserves judicial time and gives certainty to parties who voluntarily resolve litigation. Accordingly, the threshold for impeaching a consent order is deliberately high. The party seeking to set it aside bears the burden of placing before the court cogent evidence demonstrating the existence of one or more recognised vitiating factors. 7. Applying those principles to the present appeal, the burden rested squarely upon the appellant to establish, through credible evidence, that the consent recorded on 13th July 2018 was procured through fraud, misrepresentation, mistake, want of authority or any other legally recognised ground. Mere dissatisfaction with the outcome of the negotiations or a subsequent change of mind would not suffice. The question that therefore falls for determination is whether the evidence placed before the trial court met that exacting legal threshold. **ANALYSIS AND DETERMINATION** **Whether the Appellant Established Any Ground for Setting Aside the Consent** 1. The appellant's challenge to the impugned consent rests principally on four grounds. He contends that his former advocate acted without authority; that he merely signed blank papers believing they related to attendance at the meeting; that he did not participate in the negotiations culminating in the settlement; and that the consent was procured through fraud and misrepresentation. The Court proposes to examine each of those complaints against the contemporaneous record that was before the trial court. 2. Before doing so, it is necessary to observe that the burden of proving the existence of any recognised vitiating factor rested upon the appellant. As already observed, a consent judgment enjoys the same sanctity as any other contract endorsed by a court of law. Consequently, the Court approaches allegations seeking to impeach such a consent with considerable caution. It is therefore not sufficient for a party merely to allege fraud, mistake or want of authority. Those allegations must be established by cogent and credible evidence. **(a) Whether the Consent was Procured through Fraud or Misrepresentation** 1. The appellant asserted that the consent was procured through fraud and misrepresentation because he neither participated in the negotiations nor appreciated the effect of the documents that he signed. He maintained that he believed he was merely acknowledging attendance at the meeting and only discovered the true nature of the consent after obtaining copies of the court proceedings. 2. Fraud is a serious allegation carrying significant legal consequences. It must therefore be specifically pleaded and strictly proved by evidence that is more cogent than that required on a mere balance of probabilities, though not to the standard required in criminal proceedings. General allegations, suspicion or dissatisfaction with the outcome of negotiations cannot suffice. 3. Upon an independent evaluation of the material that was before the trial court, the evidence falls considerably short of that threshold. Beyond the appellant's assertions contained in his supporting affidavit, no independent evidence was placed before the court demonstrating any deceit, concealment of material facts or misrepresentation that induced him to confirm the consent. Neither the advocate alleged to have acted improperly nor any other person present during the negotiations swore an affidavit corroborating those allegations. 4. On the other hand, the contemporaneous proceedings of **13th July 2018** present a materially different picture. They record that after negotiations were concluded, counsel returned before the court, the consent was read into the record and the learned magistrate invited the parties themselves to confirm whether the recorded terms reflected their agreement. The proceedings expressly record that the appellant personally confirmed the consent before it was adopted as an order of the court. 5. Applying the principles in **Hirani v Kassam**, **Brooke Bond Liebig (T) Ltd v Mallya** and **Flora N. Wasike v Destimo Wamboko**, this Court is unable to conclude that fraud or misrepresentation was established. The contemporaneous judicial record is wholly inconsistent with the allegation that the appellant was deceived into accepting the consent. In the absence of credible evidence demonstrating fraud, the law does not permit the Court to invalidate a consent merely because one party subsequently regrets the compromise reached. **(b) Whether Counsel Acted Without Authority** 1. The appellant next contended that his advocate acted without instructions by negotiating and recording the consent. 2. There is no dispute that an advocate cannot compromise a client's rights without authority. Equally, the law recognises that an advocate acting within the apparent scope of his authority may bind his client by a consent entered into in the course of litigation. That was the principle affirmed by the Court of Appeal in **Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd**, where the Court recognised the binding effect of a consent entered into by counsel acting within the apparent scope of his retainer. 3. Applying that principle to the present appeal, the decisive issue is not whether negotiations were initially commenced at the instance of counsel. The decisive question is whether the appellant subsequently adopted the consent after its terms were read before the court. 4. The contemporaneous proceedings provide a complete answer to that question. They demonstrate that the learned magistrate did not simply record counsel's agreement. Instead, the parties themselves were invited to confirm the consent, whereupon the appellant personally affirmed that it reflected his agreement. That affirmation constituted a direct adoption of the consent before the court. 5. As a matter of fact, the contemporaneous proceedings establish that the appellant personally confirmed the consent. As a matter of law, that confirmation amounted to a ratification of the agreement. Consequently, even assuming, without deciding, that counsel had initially exceeded his instructions, the appellant's subsequent confirmation rendered that complaint unsustainable in the absence of proof that the confirmation itself was procured through fraud, coercion or mistake. 6. The appellant placed no evidence before either the trial court or this Court suggesting that his confirmation before the magistrate was involuntary or induced by any improper conduct. The allegation that counsel acted without authority therefore cannot, in the circumstances of this case, justify the setting aside of the consent. **(c) Whether the Appellant Merely Signed Blank Papers** 1. The appellant further asserted that he merely signed blank papers believing that they were intended to confirm his attendance at the negotiations. 2. Once again, that allegation remained entirely uncorroborated. The advocate who allegedly requested those signatures did not swear an affidavit supporting that version of events. Neither was any beneficiary or other person present during the negotiations called upon to confirm that blank papers had been signed. 3. More importantly, the handwritten minutes prepared during the negotiations materially contradict that assertion. Those minutes record detailed deliberations concerning the administration of the estate, identify the beneficiaries present, specify the agreed resolutions and culminate in the consensus that was later presented before the court. They are entirely consistent with the proceedings subsequently recorded by the learned magistrate. 4. In evaluating the competing accounts, this Court accords greater evidential weight to the contemporaneous court proceedings and the handwritten minutes prepared on **13th July 2018** than to allegations first raised nearly three years later. Contemporaneous judicial records prepared in the ordinary course of proceedings ordinarily provide the most reliable account of what transpired unless successfully impeached by cogent evidence. No such evidence was forthcoming in the present case. 5. The record therefore does not support the appellant's assertion that he merely acknowledged attendance at the meeting. On the contrary, the evidence demonstrates that the negotiations culminated in a consensus which was subsequently confirmed before the court. **Whether the Learned Chief Magistrate Erred in Declining to Set Aside the Consent** 1. The appellant further contended that the learned Chief Magistrate failed to properly appreciate his explanation for the delay in challenging the consent. According to the appellant, he only discovered the true effect of the consent after obtaining copies of the court proceedings, whereupon he moved the court without undue delay. 2. Delay, standing alone, is not necessarily fatal to an application seeking to impeach a consent order. Each case must be determined on its own peculiar facts. However, where a party seeks to set aside a consent after a considerable lapse of time, the court is entitled to examine whether the explanation offered is consistent with the contemporaneous record and whether it lends credence to the allegations relied upon. 3. In the present case, the consent was recorded on **13th July 2018**, whereas the application seeking to set it aside was filed on **5th July 2021**, almost three years later. More significantly, the explanation advanced by the appellant does not satisfactorily reconcile with the proceedings recorded on the day the consent was adopted. Those proceedings demonstrate that the consent was not merely negotiated by counsel but was personally confirmed by the appellant before the learned magistrate. Had the recorded consent failed to reflect his understanding or intention, one would reasonably have expected an immediate objection or a challenge brought within a reasonable time thereafter. While delay alone would not defeat an otherwise meritorious application, the prolonged inaction, viewed together with the absence of credible evidence of fraud or misrepresentation, substantially weakens the appellant's case. **(e) Whether the Consent Improperly Determined the Distribution of the Estate** 1. The appellant also faulted the learned magistrate for failing to appreciate that the consent purported to determine the distribution of the estate before confirmation of the grant, contrary to the provisions of the Law of Succession Act. 2. The Court has carefully examined both the handwritten minutes and the consent recorded before the subordinate court. Those documents reveal that the parties agreed upon the appointment of the appellant and the respondent as joint administrators and recorded a consensus on the proposed mode of distribution. The consent further contemplated that a summons for confirmation of grant would subsequently be filed to present that consensus to the court for approval. 3. The distinction is significant. The consent did **not** itself confirm the grant, vest the estate in the beneficiaries or authorise the immediate transmission of the deceased's property. Those steps remained subject to the statutory confirmation process under the **Law of Succession Act**, during which the court retained the duty to satisfy itself that the proposed distribution was lawful and consistent with the rights of all beneficiaries. 4. The record therefore does not support the contention that the consent circumvented the statutory process governing confirmation of grants. At most, it reflected the beneficiaries' proposed mode of distribution, which still required judicial scrutiny before it could acquire legal effect. That complaint therefore lacks merit. **(f) Whether this Court Should Interfere with the Exercise of the Trial Court's Discretion** 1. Having independently re-evaluated the entire record, this Court is satisfied that the learned Chief Magistrate identified the correct legal principles governing the setting aside of consent judgments, considered the evidence placed before the court and reached a conclusion that was fully supported by the material on record. 2. It is true that this Court has undertaken a more elaborate analysis of both the evidence and the applicable authorities. However, the role of a first appellate court is not to interfere merely because it might have expressed the reasoning differently. The question is whether the decision appealed from is vitiated by an error of law, a misapprehension of the evidence, the consideration of irrelevant matters, the omission of relevant matters or an improper exercise of judicial discretion. 3. The principles governing appellate interference with the exercise of judicial discretion are settled. In **Mbogo & Another v Shah [1968] EA 93**, the former Court of Appeal for East Africa held that an appellate court should not interfere with the exercise of judicial discretion unless it is satisfied that the lower court misdirected itself in law, took into account matters it ought not to have considered, failed to consider matters it ought to have considered, or reached a decision that is plainly wrong. 4. Applying those principles to the present appeal, this Court is unable to identify any basis upon which appellate intervention would be justified. The learned Chief Magistrate correctly appreciated that the burden rested upon the appellant to establish fraud, misrepresentation, mistake, want of authority or any other recognised ground capable of vitiating the consent. The evidence placed before the court did not discharge that burden. On the contrary, the contemporaneous proceedings and the handwritten minutes consistently demonstrated that the consent was voluntarily reached and personally confirmed by the appellant before it was adopted as an order of the court. 5. The conclusion reached by the learned Chief Magistrate was therefore plainly open on the evidence. Although this Court has amplified the reasoning and applied the relevant authorities in greater detail, it ultimately arrives at the same conclusion. None of the thirteen grounds of appeal has been established. **DISPOSITION** 1. Having discharged its duty as a first appellate court, this Court has independently reconsidered and re-evaluated the entire record of the subordinate court. The evidence establishes that the appellant voluntarily confirmed the consent recorded on **13th July 2018** before it was adopted as an order of the court. The allegations of fraud, misrepresentation, mistake and want of authority were not supported by cogent evidence capable of displacing the evidential weight of the contemporaneous judicial record. Applying the settled principles governing the setting aside of consent judgments, this Court is satisfied that no recognised ground was established to warrant interference with the consent or with the ruling of the learned Chief Magistrate. 2. This dispute concerns members of the same family litigating over the administration of the estate of their late mother. Succession proceedings should, wherever possible, facilitate the orderly administration of estates while promoting finality and preserving family harmony. It is therefore hoped that, following the determination of this appeal, the parties will devote their energies towards bringing the administration of the estate to its lawful conclusion in accordance with the Law of Succession Act. **ORDERS** 1. In the result, the Court makes the following orders: 2. **The appeal is hereby dismissed.** 3. **The ruling and orders of the Chief Magistrate delivered on 10th December 2024 in Kiambu Chief Magistrate's Court Succession Cause No. 579A of 2016 are hereby upheld.** 4. **Each party shall bear his own costs of the appeal.** **It is so ordered.** **DELIVERED, DATED AND SIGNED ON 30TH JULY 2026.** **RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.** **MARTHA MUTUKU.** **………………………………** **JUDGE** In the presence of: - N/A for Appellant N/A for the Respondent Court Assistant – Mr.Zadock