Hillary Kiprotich Rono v Jacob Rono & 3 others

Chamber Summons Application Dated 25th March 2025 3. The Applicant sought the following orders: I. That the Grant of Letters of Administration Intestate issued on 5th may 2017 and confirmed on 30th January 2025 and the mode of distribution therein be set aside. II. That the distribution of the estate of the deceased among beneficiaries as indicated in the certificate of confirmation of Grant be reviewed accordingly and the certificate be amended and a fresh one be reissued. 4. Through his Supporting Affidavit dated 25th March 2025, the Applicant stated that he was the deceased’s son from the third household. That on 30th January 2025, his siblings proceeded to adopt the Mediation Settlement Agreement in his absence and the result was that the 3rd household inherited only 4 acres of the deceased’s estate which was in excess of 57.85 acres. The Applicant stated that he opposed the distribution of the deceased’s estate as it was unfair and unjust to the 3rd household. 5. It was the Applicant’s case that plots forming part of the estate were unfairly distributed as the third household were given plots situated outside Bomet whereas two plots situated in Bomet town were inherited by a son and granddaughter from the 1st household. It was the Applicant’s further case that Plot No. 39 Itembe which was given to the 3rd household was not a free property of the deceased as it had an ownership dispute with another party. 6. The Applicant stated that as per section 29 of the Law of Succession Act, he was entitled to ab equal share of the deceased’s estate. 7. Through his written submissions dated 25th November 2025, the Applicant submitted that he was not present at the execution of the Mediation Agreement and was thus not a party. He relied on Re Estate of Johnson Omae Aburi (2022) eKLR. That the 3rd household was allocated 4 acres only out of 57.85 acres and that this court had inherent powers under rule 73 of the Probate and Administration Rules to review the mode of distribution. 8. It was the Applicant’s submission that Mediation Agreements can always be set aside if the Agreement was obtained contrary to the court’s policy. That the court’s policy was that each beneficiary to get an equitable share of the deceased’s estate. He relied on Kenya Commercial Finance Company Ltd vs Ngeny & another (2002) 1KLR and Article 159 (2) (c) of the Constitution of Kenya. Response 9. Through his Replying Affidavit dated 11th November 2025, the 1st Respondent stated that the present Application was defective and an afterthought. That the Applicant was being used by the 3rd Administrator to set aside a proper and valid Mediation Agreement which was done in the presence of representatives of all houses. That the Mediator allowed all the parties to make their presentations and that there was no good reason to why the Grant should be set aside. 10. In his Further Affidavit dated 11th December 2025, the 1st Respondent stated that the Applicant was present during the 1st Mediation meeting on 12th January 2025 and signed the list of attendees. That on the same day, all the properties of the deceased were listed and parties requested for time to go and deliberate on the mode of distribution. The 1st Respondent further stated that the Applicant was aware of the Mediation proceedings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5430/eng@2026-04-27 2

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11. Through their written submissions dated 5th January 2025, the Respondents submitted that the Grant should not be revoked as it did not meet the threshold set in section 76 of the Law of Succession Act. The Respondents further submitted that the prayer for Review ought to fail as it did not conform to the principles governing the grant of a Review Order. They relied on Re Estate of Mary Nduta Kimani [2018] KEHC 1056 (KLR). 12. It was the Respondents’ submission that a Judgement founded on a Mediation process cannot be set aside nor can it be appealed. They relied on Re Estate of Maina Gathuri (Deceased) (Succession Cause 792 of 2015) [2025] KEHC 16017 (KLR) (7 November 2025) (Ruling) and Kenya Commercial Bank vs Benjoh Amalgamated Ltd (1997) eKLR. It was the Respondents’ further submission that the Applicant had not pleaded or proved fraud, misrepresentation, mistake or concealment of facts. 13. I have gone through the entire record, the Chamber Summons Application dated 25th March 2025, the Replying and Further Affidavits dated 11th November 2025 and 11th December 2025 respectively, the Applicant’s written submissions dated 25th November 2025 and the Respondents’ written submissions dated 5th January 2025. The two issues that arose for determination were: i. Whether the Grant dated 5th May 2017 and confirmed on 30th January 2025 should be revoked. ii. Whether the order on distribution of the deceased’s estate should be reviewed. i. Whether the Grant dated 5th May 2017 and confirmed on 30th January 2025 should be revoked. 14. The law on revocation of Grants is provided for in Section 76 of the Law of Succession Act which states that: A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion(a) that the proceedings to obtain the grant were defective in substance; (b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case; (c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently; (d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either- (e) (i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or (ii) to proceed diligently with the administration of the estate; or (iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or that the grant has become useless and inoperative through subsequent circumstances. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5430/eng@2026-04-27 3

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15. In this matter, as earlier stated, was resolved through a Mediation process. The Certificate of Confirmation of Grant dated 30th January 2025 was premised on the Mediation Settlement Agreement that was filed in this court on 25th January 2024 and adopted in this court on 30th January 2025. Once the Mediation Settlement Agreement was adopted, it became an order of this court that was valid and enforceable. 16. The Applicant’s main reason for wanting the Grant revoked was that he was aggrieved with the mode of distribution and the mode of distribution as earlier stated, was anchored on the Mediation Settlement Agreement. In essence, the Applicant sought setting aside of the Mediation Settlement Agreement dated 30th January 2025. 17. Mediation Settlement Agreements are consensual in nature and the grounds for setting them aside are akin to the grounds of setting aside a contract. In Re Estate of Anthony Njeru Karobia (Deceased) [2026] KEHC 1961 (KLR), the court held: “ In law a consent order binds all the parties thereto. A consent order may only be set aside if the grounds required to invalidate a contract are shown to exist i.e fraud, mistake, collusion or if the consent runs counter to Public Policy.” In the case of Flora N Wasike v Destimo Wamboko [1988] KLR the Court of Appeal stated thus: “ It is well settled law that a consent judgment or order has contractual effect and may only be set aside on grounds which justify setting aside a contract.” In Kenya Commercial Bank Ltd v Specialised Engineering Company Ltd [1982] KLR, the Court stated that “ A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collision or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.” In Board of Trustees National Social Security Fund v Michael Mwalo [2015] eKLR the Court of Appeal held as follows: “ The judgment arose from a consent of the parties to the suit. The law pertaining to setting aside of consent judgments or consent order has been clearly stated. A Court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. 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.” [Own emphasis] Finally, on this point the case of SMN v ZMS [2017] eKLR summarised the case law and the grounds upon which a consent may be varied or set aside as follows: “ i. Where the consent was obtained fraudulently. ii. Where there was use of collusion between affected parties in securing the consent. iii. Where the consent agreement runs contrary to public policy. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5430/eng@2026-04-27 4

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18. iv. Where the consent is based on insufficient material facts. iv. Where the consent was obtained on the basis of misapprehension or ignorance of material facts. v. For any other sufficient reason.” In regards to the setting aside of Mediation Settlement Agreements, Rule 39 of the Civil Procedure (Court-Annexed Mediation) Rules provides: (1) No application for setting aside of an order or decree arising from a mediation settlement agreement shall be filed except with the leave of court. (2) An application for leave under subrule (1) shall be supported by an affidavit detailing the grounds upon which the applicant intends to rely in setting aside the order or decree. (3) The following shall constitute the grounds upon which an application to set aside an order or decree arising from a mediation settlement agreement— (a) misconduct, fraud, or a fundamental mistake by the mediator as relates to the mediation proceedings that goes to the core of the matter: Provided that the misconduct, fraud or mistake should not have been known by the applying party at the time of execution of the settlement agreement and should be one which affected the process and outcome of the mediation in such a way that it would be unfair and inequitable to enforce it in its form; (b) fraud, collusion, or misrepresentation by any party to the mediation (other than the party applying) or any witness or person who took part in the proceedings and whose participation materially affected the outcome; (c) a fundamental mistake by any or all of the parties to the mediation as to the existence or state of the subject matter, person or thing; or to any set of facts that materially affected the parties’ decision to enter into the subject agreement and which has rendered such agreement unfair and inequitable; (d) where a party was, at the time of the making of the agreement, under some legal incapacity to take part in the subject mediation proceedings or to conclude and execute a binding settlement; or (e) where the settlement agreement is invalid under Kenyan or international law, or is or has become incapable of enforcement under Kenyan law. (4) At the hearing of an application to set aside an order or decree, no party shall, without leave of court, be allowed to canvass any other ground in support of the application other than the grounds specified in subrule (3). (5) The court shall hear and determine an application under this on priority basis within thirty days after filing. (Emphasis mine) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5430/eng@2026-04-27 5

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19. It is clear from the above, that leave of the court must be sought by the Applicant before he filed an Application for the setting aside of a Mediation Settlement Agreement, as is the present case. I concur with the court In Re Estate of Kipturgut Arap Cheruiyot (supra), where it was held: “ I have considered the respective cases of the parties and without delving further into whether the mediation settlement agreement is valid, I find that it is of utmost importance to consider whether the application to set aside the mediation agreement is competently before this court, rule 39 of the Civil Procedure (Court Annexed Mediation) Rules, 2022 which is set out in mandatory terms provides that :“ No application for setting aside of an order or decree arising from a mediation settlement agreement shall be filed except with the leave of the court. An application for leave under sub rule (1) shall be supported by an affidavit detailing the grounds upon which the applicant intends to rely on in setting aside the order or decree.” I have carefully studied the contents in the file, I have not come across evidence demonstrating that the applicant first sought for leave of the court to apply for setting aside of the mediation settlement agreement. In the absence of leave by the applicant to file the instant application, I find that this court lacks jurisdiction to entertain the application which is incompetently before it and on this premise the preliminary objection succeeds.” 20. Similarly, in Too & another v Too & 15 others [2026] KEHC 2508 (KLR), the court held: “ The above Rules therefore clearly envision the seeking of leave to set aside as a separate stage from the filing of the substantive Application. The Rules also envision setting aside of the order arising from the Settlement Agreement, and not the Settlement Agreement itself……” 21. I have keenly gone through the record and there was no evidence that the Applicant sought the court’s leave before filing the present Application. This means that the present Application was incompetent before this court. Further, the Application did not meet the threshold for revoking the Grant as provided for under section 76 of the Law of Succession Act. ii. Whether the Order on Distribution of the Deceased’s Estate Should be Reviewed. 22. It is trite law that the High Court has a power of Review. The law on Review is based on section 80 of the Civil procedure Act and order 45 rule 1 of the Civil Procedure Rules, 2010. It is salient to note that this court’s power must be exercised within this circumscribed legal framework. 23. Section 80 of the Civil Procedure Act provides as follows: Any person who considers himself aggrieved(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, May apply for a review of judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit. 24. Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5430/eng@2026-04-27 6

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(1) 25. 26. 27. Any person considering himself aggrieved(a) By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgement to the court which passed the decree or made the order without unreasonable delay. From the above provisions, it is clear that section 80 of the Civil Procedure Act gives the power of Review while order 45 of the Civil Procedure Rules 2010, sets out the rules. The Rules limit the grounds applicable for Review as follows: i. The discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the Applicant or could not be produced by him at the time when the Decree was passed or the Order made. ii. On account of some mistake or error apparent on the face of the record. iii. Any other sufficient reason and that the Application has to be made without unreasonable delay. The Court of Appeal in Tokesi Mambili and others vs Simion Litsanga (2004) eKLR held: “ i. In order to obtain a review an applicant has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason. ii. Where the application is based on sufficient reason it is for the Court to exercise its discretion.” On the ground of an error apparent on the face of the record, the court in Zablon Mokua v Solomon M. Choti & 3 others [2016] KEHC 683 (KLR) held: “ In Muyodi vs. Industrial and Commercial Development Corporation & Another [2006] 1 EA 243, the Court of Appeal described an error apparent on the face of the record as follows: “ In Nyamogo & Nyamogo -vs- Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5430/eng@2026-04-27 7

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process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.” (Emphasis mine) 28. I have carefully gone through and considered the Application and the parties’ submissions. The Applicant has not demonstrated any error that is apparent on the face of the record. It is therefore my finding that he has not established or satisfied this ground of review. 29. Regarding the ground of discovery of new material that was not within the court’s knowledge when it delivered its Ruling, Mativo J.’s (as he then was) findings in Nasibwa Wakenya Moses v University of Nairobi & another [2019] KEHC 11472 (KLR), stated: “ To qualify to be new evidence so as to fall within the ambit of order 45 rule 1 of the Civil Procedure Rules, the new evidence must be of such a nature that it could not have been within the knowledge of the applicant despite the exercise of due diligence.” 30. Similarly, in the case of Rose Kaiza v Angelo Mpanju Kaiza [2009] KECA 422 (KLR), the Court of Appeal held that: “ Applications on this ground must be treated with great caution and as required by r 4(2) (b) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.” (Emphasis mine) 31. Again, there was no evidence demonstrated by the Applicant on the same. 32. On the ground of any other sufficient reason, the Court of Appeal in Registered Trustees of the Archdiocese of Dar es salaam vs Chairman of Bunju Village Government & Others, Civil Appeal No. 47 of 2006, observed that: “ It is difficult to attempt to define the meaning of the words sufficient cause. It is generally accepted however, that the words should receive a liberal construction in order to advance substantial justice, when no negligence, or inaction or want of bona fides, is imputed to the Appellant.” 33. The Court of Appeal in Pancras T. Swai v Kenya Breweries Limited [2005] KEHC 1832 (KLR) held that: “ ………..As repeatedly pointed out in various decisions of this Court, the words, “for any sufficient reason” must be viewed in the context firstly of section 80 of the Civil Procedure Act, cap 21, which confers an unfettered right to apply for review and secondly on the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5430/eng@2026-04-27 8

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current jurisprudential thinking that the words need not be analogous with the other grounds specified in the order.” 34. I have looked keenly at the record and it is my finding that there was no sufficient reason for this court to review its order dated 30th January 2025. The Order was anchored on an executed Mediation Settlement Agreement which has not been set aside and thus remained valid, active and enforceable. 35. In the final analysis, having considered the Application in its entirety, I find that the grounds cited by the Applicant did not qualify to be grounds for review to bring the Application within the ambit of the grounds specified in order 45 rule 1 of the Civil Procedure Rules. It is my finding that this was not a proper case for the court to grant the review sought. Accordingly, the invitation to review the Order dated 30th January 2025 is declined. 36. In the end, the Chamber Summons Application dated 25th March 2025 has no merit and is dismissed. RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 27TH DAY OF APRIL, 2026. ........................................... HON. JULIUS K. NG’ARNG’AR JUDGE Ruling delivered in the presence of; Susan/Siele - Court Assistant. Benson for Applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5430/eng@2026-04-27 9

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