Leah Cherop Koech v Richard Mzee & 1 other

4. She claims that her late husband was given 9.5 acres at Surungai Farm L.R No.5736. 5. She further claims that the respondents herein were given 5 acres from Kaplamai/Ngonyek/83. 6. That the respondents asked her to accompany them to an advocate’s office to sign documents and according to her the documents were transfer forms to enable her get 9.5 acres given to her late husband. She claims she was rushed to sign the documents since they had initially disagreed at the Area Chief. 7. She claims that the consent order was obtained by misrepresentation and that the subsequent certificate of confirmation should be reviewed and set aside on grounds of fraud and/or concealment of material facts. 8. In her oral evidence in court, she insisted that the respondent herein Pauline Jelimo, who is her sister in law misled her into signing consent by thumb printing. She stated that her husband was the only son in the 1st house with other children being daughters including the respondent herein. She said she signed the consent willingly but did not know the implications. 9. She claimed that the respondent should get her share at Ngonyek. 10. The respondents Richard Mzee and Paulina Jelimo Saina in a joint affidavit jointly sworn on 6/6/24 have opposed this application. 11. They aver that the beneficiaries in this matter could not agree on the mode of distribution and the matter was heard vide a judgment delivered on 14/2/2017. They have exhibited the judgment where Justice Chemitei distributed the estate as follows; a. 1st house to get L.R No.Surungai measuring 9.5acres. b. 2nd house – Cherangany/Kachibora Block 1(Kipkeikei) 220 measuring 29 acres. c. 4th house – Kaplamai Sirende Block 2 (Ngonyek)8 measuring 45.6 acres. Members of each house were to subdivide their respective portions as they deem fit. 12. The respondents aver that members from the 1st house comprised 3 beneficiaries namely; i. Paul Kiprop (deceased) husband to the applicant. ii. Paulina Jelimo Saina. iii. Pauline Cheptoo Bwalei. 13. They aver that the extracted certificate of confirmation dated 19/4/2018 erroneously omitted the other beneficiaries with respect to Surungai Farm L.R 5736 measuring 9.5 acres and gave the whole parcel to Paul Kiprop. 14. That the error was later rectified vide a consent dated 16/5/2022. They aver that the consent order was therefore proper. 15. They submit that the claims of misrepresentation or concealment do not arise because the late Paul Kiprop could not take the whole parcel to the exclusion of his two sisters. They submit that the application before court is misconceived and fails the test for review or setting aside a consent. 16. This court has considered this application and the response made. The applicant is basically asking this court to set aside a consent order dated 16/5/22 adopted in court on 27/10/2022. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/485/eng@2026-01-27 2

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17. A consent is like a contract between parties. It is binding and can only be set aside on the following grounds; i. Illegality. ii. Fraud or misrepresentation. iii. Inducement or force. iv. If one of the contracting parties can demonstrate that he or she was not sane or incapable of knowing what he or she was signing. The burden of establishing any of the above grounds is on the one alleging and the standard is usually higher than standard applicable in civil matters. In Flora .N. Wasike –vs- Destino Wamboku (1988)eKLR the Court of Appeal stated as follows; “ It is now settled 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”. In Kenya Commercial Bank Ltd –vs- Specialized Engineering Co Ltd (1982) KLR 485 the court made similar observations as follows; “ A consent order entered into by consent is binding on all parties to the proceeding and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorant which would enable the court to set aside an agreement”. 18. In Intercounties Importers and Exportes Ltd –vs- Teleposta Pension Scheme Registered Trustees & 5 Others (2019)eKLR the Court of Appeal also made similar observations by stating; “ Essentially, the above cited authorities are clear that a consent order will only be set aside if it can be demonstrated that it was procured through fraud, non-disclosure of material facts or mistake or for a reason which would enable a court set aside”. 19. Turning to the present case, it is quite evident from the record that there was a judgment delivered by Hon Justice Chemitei on 14/2/2017 where the estate of the deceased herein was distributed to 3 houses namely 1st house, 2nd house and 4th house. The 3rd house was found to have already been catered for. From the judgment, the 1st house comprising Paul Kiprop (deceased) the late husband to the applicant, Paulina Jelimo Saina and Pauline Cheptoo Bwalei were given that parcel known as Surungai Farm LR No.5736. The judge in his judgment directed members of each household to divide what they had been given in a manner they deem fit. 20. This court finds the consent dated 16/5/22 was proper because looking at it the 3rd beneficiary namely Pauline Cheptoo Bwalei even forewent her share and surrendered it to her siblings Paul Kiprop and Paulina Jelimo Saina to share 9.5 acres equally. The parties appeared in court on 27/10/2022 and going by the record Leah Koech Kiprop, Paulina Jelimo Saina and Pauline Cheptoo Bwalei were present. Hon Justice Mrima indicated that he interrogated the parties before adopting the consent as the order of court. I do not see any misrepresentation, fraud or misleading or any kind of impropriety there. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/485/eng@2026-01-27 3

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21. What is even more glaring is the fact that the consent was actually addressing an irregularity, a mistake where Paul Kiprop had taken the whole share by himself to the exclusion of his sisters. That was a mistake because unless the daughters like in the case of Pauline Cheptoo Bwalei, denounce their right to inherit, they are entitled like any child to get a share of the estate. Discrimination on grounds of gender or any other consideration for that matter is outlawed under Article 27 of the Constitution. The applicant appears to be under the wrong believe or impression that because Paul Kiprop was the only son in the 1st house, he should then take everything given to that house. Her claim that the respondent’s share is in Ngonyek fiies in the face of the judgment delivered in this court on 14/2/2017. 22. The application dated 7/7/23 is found to be tacky, devoid of merit and untenable. It is misconceived and misadvised. The same is disallowed with costs to the respondents. 23. This court has also looked at the nature of the application dated 15/5/23 and finds that the same is merely meant to execute the certificate of confirmation that the applicant was seeking to review and set aside. This court finds that for purposes of expediency and ends of justice, I will invoke my power under section 47 of the Law of Succession Act and Rule 73 P&A Rules that application is hereby allowed as prayed so that each beneficiary can take possession of what is rightly theirs by law. Upon delivery of this ruling, the application dated 6/6/24 will be fixed for mention for directions. DELIVERED, DATED AND SIGNED AT KITALE THIS 7TH DAY OF JANUARY, 2026. HON JUSTICE R.K. LIMO KITALE HIGH COURT Ruling delivered in open court In the presence of Ngeiywa for the applicant Leah Cherop and Richard Mzee – respondents present Duke/Chemosop – Court assistants https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/485/eng@2026-01-27 4

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