In re Estate of RBC (Civil Appeal 117 of 2019) [2023] KECA 1553 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once you withdraw a claim in a family estate dispute through your lawyer, you cannot later reverse course without proving fraud.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal had jurisdiction to entertain the appeal without prior leave, given that it emanated from a succession cause
- 2.Whether the learned judge erred in law and in fact by negating a consent recorded by the appellants and J without any evidence of fraud or misrepresentation and/or mistake proven before her
- 3.Whether the learned judge erred in law and fact in failing to note that the orders sought by M were sought after the grant was confirmed and therefore would remain orders granted in vain
- 4.Whether the learned judge erred in failing to order a DNA test to determine the beneficiaries of the estate (cross-appeal)
Key legal issues
#Whether leave to appeal is a prerequisite for an appeal to the Court of Appeal in succession matters
Leave was not required because the appeal was from a ruling on a review application, an order from which an appeal lies as of right under order 43 rule 1(x) of the Civil Procedure Rules, imported into succession proceedings by rule 63(1) of the Probate and Administration Rules
The court noted two conflicting schools of thought in the Court of Appeal on whether leave is required in succession appeals. It resolved the matter on the narrower basis that M's application was in substance a review under order 45 rule 1, one of the orders imported by rule 63(1). Since an appeal lies as of right from order 45 rule 3 under order 43 rule 1(x), and article 164(3) permits appeals from the High Court, the appeal was competently before the court. The court also noted M had filed his own cross-appeal without leave.
Whether the learned judge erred in setting aside the consent of November 8, 2018
The judge erred. The consent was entered between the appellants and J; M had already withdrawn his objection and cross-petition on October 19, 2018 and thus had no locus to challenge the consent, and no fraud, collusion or mistake was established to warrant interfering with it
The court applied the settled test that a consent order may only be impeached on proof of fraud, collusion or an agreement contrary to public policy. M's instruction note and notice of withdrawal preceded the consent, so at the time of the consent he was no longer a party. The appellants and J could not therefore be said to have conspired to his detriment, and the withdrawal of his objection had been validly adopted as an order of the court.
Whether the court was functus officio after confirmation of the grant such that the orders were granted in vain
The court declined to make a definitive finding, as the record contained glaring inconsistencies on whether the grant had in fact been confirmed; the appeal succeeded on other grounds
Although the record suggested the grant was confirmed on November 27, 2018, subsequent proceedings showed uncertainty as to whether the formal grant was ever signed, since counsel later urged the court to sign it. Faced with these inconsistencies the court found it could not definitively determine confirmation, and disposed of the appeal instead on the validity of M's withdrawal and the absence of fraud, setting aside the ruling and dismissing his application.
Whether a DNA test should have been ordered from the deceased's remains (cross-appeal)
The cross-appeal was dismissed; with M's objection and cross-petition withdrawn, there was no reason to order a DNA test, and the judge's finding that the appellants recognised M's stake in the estate was unchallenged
The court observed that the proceedings began in 2012 and M had not sought DNA testing until November 27, 2018, six years and nine months later, in his review application. The trial judge had declined the order, reasoning that the petitioners' conduct in attempting to marginalise the applicant and then offering him Kshs 1 million demonstrated recognition of his stake. That finding was not challenged on appeal, so the cross-appeal failed.
Legal principles established
#- An appeal from an order of review under order 45 rule 1 of the Civil Procedure Rules lies as of right under order 43 rule 1(x), which is imported into succession matters by rule 63(1) of the Probate and Administration Rules; therefore no leave is required for such an appeal from the High Court exercising original jurisdiction in a succession cause
- A consent judgment or order may only be set aside on grounds such as would justify rescinding a contract, namely fraud, collusion, or an agreement contrary to the policy of the court
- A party who has withdrawn from proceedings through counsel, having been represented, is bound by the representations made by that counsel and lacks locus to challenge a consent entered into by the remaining parties
Court orders
#- 1.The preliminary objection dated 13th July 2021 is dismissed
- 2.The orders of April 10, 2019 are set aside
- 3.The application filed by M dated November 27, 2018 stands dismissed
- 4.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- Succession Cause No 121 of 2011
- Jurisdiction invoked
- Article 164(3) of the Constitution, with appellate jurisdiction over orders under order 43 rule 1(x) of the Civil Procedure Rules as imported into succession matters by rule 63(1) of the Probate and Administration Rules
Relief refused
#M's cross-appeal seeking an order for DNA testing of the deceased's remains to ascertain his biological connection to the estate
M had withdrawn his objection and cross-petition, and the learned judge's finding that the appellants recognised his stake in the estate was not challenged on appeal
M's application dated November 27, 2018 seeking to vary/set aside the proceedings and orders of November 8, 2018
The consent and the notice of withdrawal were valid; no fraud or collusion was established, and M, having been represented by counsel, was bound by his counsel's representations
Costs
No order as to costs; the court directed that each side bear its own costs, stating: "This being a dispute touching on succession, we shall make no order as to costs. It is so ordered."
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
jurisdiction is everything and it must be raised at the earliest opportunity since a court without jurisdiction cannot take one more step and without it, the Court must down its tools.
the instant appeal is competently before us and that leave was not necessary in an appeal from a review application, as it is one of the orders imported to apply in succession matters by rule 63 (1) of the Probate and Administration Rules
To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the policy of Court.
This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.
We find that the notice of withdrawal of answer and cross-petition dated October 19, 2018 were validly adopted as orders of the court.
This being a dispute touching on succession, we shall make no order as to costs. It is so ordered.
Issues in the judgment
#The judgment itself records irreconcilable inconsistencies in the trial record on whether the grant had been confirmed, and the Court expressly declines to make a definitive finding on this point
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wandi v Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira)[2026] KESC 29 (KLR)31 Mar 2026
Cite this brief
#Cite this brief
Caselaw, "In re Estate of RBC (Civil Appeal 117 of 2019) [2023] KECA 1553 (KLR)", Case Analysis (2023). Court of Appeal at Eldoret, appeal against ruling of April 10, 2019 in Eldoret High Court Succession Cause No 121 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1553/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.