REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BOMET
SUCCESSION CAUSE NO. E123 OF 2025
IN THE MATTER OF THE ESTATE OF TAMIRON SOI ALIAS TAMIRON ARAP SOI ALIAS TAPMIRON ARAP SOI (DECEASED).
EDWIN KIPTONUI NGERECHI ……………….……. APPLICANT
VERSUS
LANGAT PATRICK …………………………………… 1ST RESPONDENT
DAVID KIPKORIR CHESIRE ……………………… 2ND RESPONDENT
PATRICK KIMUTAI RONO ………………………… 3RD RESPONDENT
RULING.
1. In this matter, a Grant was issued to the Applicant and the Respondents on 3rd March 2026.
Chamber Summons Application dated 25th March 2026
2. The Applicant filed the referenced Application seeking the following orders: -
I. Spent.
II. THAT the Grant of Letters of Administration Intestate issued on 3rd March 2026 be nullified and/or revoked.
III. THAT upon the grant of prayer (I) above, this Honourable Court be pleased to set down the Objection dated 13th January 2026 for hearing and determination.
IV. Spent.
V. THAT this Honourable Court be pleased to issue a temporary injunction restraining the Petitioners, their agents and/or servants from disposing of, transferring, alienating or in any way interfering with the property known as KERICHO/ITEMBE/443 pending the hearing and determination of the Objection proceedings.
3. The Application was brought under section 76 of the Law of Succession Act, Rules 49 and 73 of the Probate and Administration Rules. It was premised on the grounds on the face of the Application and further by the supporting affidavit sworn by Edwin Kiptonui Ngerechi on 25th March 2026.
The Applicant’s case
4. The Applicant stated that he hired the firm of M/S Sitonik & Kipngetich Advocates to represent him in this matter and file an Objection to the current proceedings. That the said Objection was filed but was never set down for hearing as the court was on leave. The Applicant further stated that his former Advocates initiated negotiations with the Respondents’ Advocates and the beneficiaries in which he attended and the meeting failed to yield any substantive resolution or consensus.
5. It was the Applicant’s case that he learnt that a Memoramdum of Understanding had been drafted by the Advocates in which it was agreed that their legal fee would be satisfied through the sale of KERICHO/ITEMBE/443. That his Advocates later gave him a copy of a Grant of Letters of Administration Intestate issued on 3rd March 2026 in which he had been included as an Administrator. It was the Applicant’s further case that he did not give any instructions to be included as a Petitioner or Administrator of the deceased’s estate and the said development had caused him great concern and confusion.
6. The Applicant stated that upon perusing the court record, he found a Consent recorded on 2nd March 2026 that was recorded without his authority and participation. That on the same date, an amended Affidavit in support of the Petition for Grant was filed irregularly without his consent. The Applicant further stated that the Grant that contained his name as an Administrator was unauthorized, irregular, unlawful and ought to be nullified.
7. It was the Applicant’s case that the deceased’s estate had not been properly collected and the rightful beneficiaries had not been conclusively identified.
8. Through his written submissions dated 30th May 2026, the Applicant submitted that the Advocates intended to offend section 45 of the Law of Succession Act be selling part of the deceased’s estate. That the Respondents and the Advocates were engaged in a conspiracy to defraud the deceased’s estate before the same was collected and distributed. The Applicant further submitted that the Respondents did not obtain the consent of all the beneficiaries of the deceased before petitioning the court for the Grant. He relied on Rule 26 of the Probate and Administration Rules.
9. It was the Applicant’s submission that the 1st Respondent was not competent to take up the Grant as he was the deceased’s grandson. That in his Replying Affidavit, the 1st Respondent had failed to state how he was related to the deceased. He relied on section 66 of the Law of Succession Act and re Estate of Tuwei Arap Maritim (Deceased) (Succession Cause 32 of 2021) [2025] KEHC 5640 (KLR) (7 May 2025) (Ruling).
10. The Applicant submitted that the decision to dispose off KERICHO/ITEMBE/443 which formed part of the deceased’s estate before the conclusion of the succession proceedings was evidence of fraud. That the said parcel had not been valued and it was not clear how the Advocates arrived at a figure of Kshs 11,000,000/=. He relied on re Estate of Alice Mumbua Mutua (Deceased) (2017) eKLR.
Response
11. Through the Replying Affidavit dated 25th May 2026, the 1st Respondent stated that the Application was misconceived and incompetent as it sought to impeach a consent order and a Grant which arose from a voluntary agreement reached between all parties. That the succession cause was initiated by the Respondents and before they could obtain a Grant, the Applicant filed an Objection. The 1st Respondent further stated that the parties engaged in a discussion with a view to amicably settle the matter and avoid prolonged litigation.
12. It was the 1st Respondent’s case that the meeting’s resolutions were reduced into writing vide a Memorandum of Understanding dated 18th February 2026 whose import was that the parties voluntarily agreed that the succession proceedings would procced amicably and jointly and both law firms (Sitonik & Kipngetich Advocates and D. Kipngetich Advocates) would jointly conduct the proceedings and would be remunerated jointly from the deceased’s estate. That it was also agreed that the Applicant would be co-opted as a co-administrator of the estate. It was the 1st Respondent’s further case that pursuant to the Memorandum of Understanding; the parties’ respective advocates prepared and executed a Consent compromising the Objection.
13. The 1st Respondent stated that the Consent was filed in court on 3rd March 2026. That the Applicant did not raise nay complaint. That he consented to the above process by executing the Memorandum of Understanding which led to his appointment as a co-administrator. The 1st Respondent further stated that the Applicant was not excluded from the process as he actively participated in the negotiations and further attended the meeting.
14. It was the 1st Respondent’s case that the Applicant had neither pleaded nor demonstrated ant fraud, coercion, duress, mistake, collusion or misrepresentation in the procurement of the Memorandum of Understanding or the subsequent Consent. That the Applicant had changed and this could not constitute a lawful basis for revoking the Grant or setting aside the Consent. It was the 1st Respondent’s further case that the Applicant’s allegation that his former Advocate lacked instructions was malicious and was intended to mislead this court.
15. The 1st Respondent stated that the Application did not disclose any legal basis for revoking the Grant under section 76 of the Law of Succession Act.
16. Through their written submissions dated 29th May 2026, the Respondents submitted that the Applicant had not established grounds for setting aside the Consent. They relied on Flora Wasike vs Destimo Wamboko [1982-88] 1KAR 25 et.al. The Respondents further submitted that an Advocate who was properly on record is presumed to possess authority to compromise proceedings on behalf of their client. They relied on Erick Gakuya Mwathaita v Maganjo Joshua Kago [2017] KEELC 1389 (KLR).
17. It was the Respondents’ submission that the Applicant had filed to demonstrate to the court that the Advocates acted fraudulently or without instructions. That on the contrary, they had demonstrated that the Applicant sanctioned the entire process through the execution of the Memorandum of Understating. It was the Respondent’s further submission that the Applicant could not escape the legal consequences of his own signature.
18. The Respondents submitted that the Applicant had benefited from the Consent as he had been elevated from an Objector to a co-administrator and could not approbate and reprobate simultaneously. The Respondents further submitted that the Application was an abuse of the court process, was frivolous and vexatious and ought to be dismissed.
19. I have gone through the Chamber Summons Application dated 25th March 2026, the 1st Respondent’s Replying Affidavit dated 25th may 2026, the Applicant’s written submissions dated 30th may 2026 and the Respondent’s written submissions dated 29th May 2026. The only issue for my determination was whether the Grant dated 3rd March 2026 should be revoked.
20. Section 76 of the Law of Succession Act provides: -
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-
(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
(e) that the grant has become useless and inoperative through subsequent circumstances.
21. The Applicant stated that the Grant dated 3rd March 2026 was obtained fraudulently. He stated that the procurement of the Grant was premised on a Consent recorded in this court, a Consent that he did not authorize and that was entered into unilaterally by his Advocates. On the other hand, the Respondents stated that the Consent was premised on a Memorandum of Understanding in which the Applicant executed. That a clause in the said Memorandum was that all parties were to ensure that the succession proceedings would proceed jointly and amicably between all parties.
22. I have gone through the record and I have noted that the Respondents petitioned this court for the Grant on 15th December 2025. They petitioned in their capacity as the deceased’s grandsons. The Applicant filed an Objection dated 13th January 2026 challenging the capacity and locus standi of the Respondents to petition this court for the Grant. The Objection was compromised by a Consent dated 19th February 2026 which appointed the Applicant as a co-administrator and first in rank together with the Respondents. The same was adopted as an order of the court on 2nd March 2026. This is essence made the Consent an order of the court.
23. To challenge the Consent, the Applicant must prove the same grounds that are used to challenge a contract. In Wasike v Wamboko [1985] KECA 149 (KLR), the Court of Appeal held: -
“A consent judgment or order had contractual effect and could only be set aside on grounds which would justify setting aside a contract, or if certain conditions remained to be fulfilled which were not carried out.”
24. Further, the Court of Appeal in Intercountries Importers and Exporters Limited v Teleposta Pension Scheme Registered Trustees & 5 others [2019] KECA 928 (KLR) held: -
“The principles that appertain to setting aside of a consent orders are well established in a line of cases including Brooke Bond Liebig vs Mallya (1975) EA 266 where Mustafa Ag. VP stated thus;
“The compromise agreement was made an order of the court and was thus a consent judgment. It is well settled that a consent judgment can be set aside only in certain circumstances, e.g. on grounds of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable a court to set aside or rescind a contract………
And in the case of Flora N. Wasike vs Destimo Wamboko [1988] eKLR Hancox JA cited Setton on Judgments and orders (7th edition) vol 1 page 124, and reiterated that;
“Any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and those claiming under them… and cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the court…; or if the consent was given without sufficient material facts, or in general for a reason which would enable a court set aside an agreement.”
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 it aside. So, was this a case of fraud or misrepresentation”
25. In Board of Trustees National Social Security Fund v Micheal Mwalo [2015] KECA 782 (KLR), the court held: -
“The judgment arose from a consent of the parties to the suit. The law pertaining to setting aside of consent judgments or consent orders 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.”
26. It was an undisputed fact that the Applicant attended the meeting between the deceased’s beneficiaries and their Advocates on 18th February 2026. I have looked at the Memorandum of Understanding attached in the Replying Affidavit as “LP-1” and I have noted that the Applicant executed it. This meant that he was bound by the terms contained in the said Memorandum. A term of the Memorandum was that parties had agreed to amicably and jointly proceed with the succession proceedings. In my view, the term jointly referred to the Applicant and the Respondents.
27. The said Memorandum of Understanding birthed the Consent dated 19th February 2026 which as stated earlier appointed the Applicant as a co-administrator. In impeaching the said Consent, the Applicant had to prove that the Advocates acted fraudulently or had colluded in obtaining the Consent. The Applicant failed to prove any of the above grounds.
28. From my understanding, the Applicant’s main contention was the sale of KERICHO/ITEMBER/443 which formed part of the deceased’s estate to cover the Advocates’ legal fee. The Applicant is correct in observing that the same would be intermeddling contrary to section 45 of the Law of Succession Act. This being a criminal offence, this court does not have jurisdiction to determine the same as the same could only be determined by a criminal court and it only becomes an offence once the same is committed.
29. I have noted from the Applicant’s submissions that the other grounds that the Applicant relied on in his prayer for revocation of the Grant was that the Respondents did not seek the consent of all the beneficiaries and further that the 1st Respondent did not have the capacity to take out the Grant. I note that the grounds were raised in his written submissions and not in his Application. It is my finding that the same could not be referred to as grounds or evidence and are rejected. The place of submissions was stated by the Court of Appeal in Moi v Muriithi & another [2014] KECA 642 (KLR) where it held: -
“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.” (Emphasis mine)
30. Similarly, I find persuasion in Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa (suing as Administrator of the Estate of Pamela Agola Apopa) deceased [2020] KEHC 3120 (KLR), where the court held: -
“My finding is that submissions are not evidence and cannot be substitute of pleadings or evidence adduced before a trial court. Before the trial court, the parties are expected to adduce credible evidence to establish/prove their respective assertions or contentions and the court is expected to analyze that evidence and arrive at a conclusion. Submissions however well-choreographed cannot take the place of evidence in a trial court, unlike before an appellate court where submissions take the place of arguments for or against the respective grounds of appeal.” (Emphasis mine)
31. Flowing from the above, it is my finding that the Applicant failed to prove any of the grounds necessary to impeach the impugned Consent dated 19th January 2026. As a consequence, the Applicant failed to prove the grounds necessary for the revocation of a Grant as per section 76 of the Law of Succession Act.
32. In the end, the Chamber Summons Application dated 25th March 2026 has no merit and is dismissed. Each party to bear their own costs.
Ruling delivered, dated and signed at Bomet this 1st day of October, 2026.
.................................
HON. JULIUS K. NG’ARNG’AR
JUDGE
Ruling delivered in the presence of:
Siele/Susan (Court Assistants)
Kipngetich for the Petitioner
Kipkirui for the Objectors
Source: Supplied judgment file.