REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
MISC. SUCCESSION CAUSE NO.5 OF 2019
IN THE MATTER OF THE ESTATE OF THE LATE KAPTEBEREWO KOIBOS (DECEASED)
DAVID KIPKOROS TEREBEWO…...…1 ST ADMINISTRATOR/1 ST APPLICANT
DANIEL TALLAM………………….…3 RD ADMINISTRATOR/2 ND APPLICANT
SUSAN TALLAM TEBEREWO …………..…..BENEFICIARY/3 RD APPLICANT
KABON RONO…………………………..…… BENEFICIARY/4 TH APPLICANT SAMSON TEBEREWO KAIBOS……………...BENEFICIARY/5 TH APPLICANT
KIMARU TEBEREWO………………………..BENEFICIARY/6 TH APPLICANT
VERSUS
JOSEPH TOROITICH TEBEREWO..2 ND ADMINISTRATOR/1 ST RESPONDENT
TAPRANTICH KIPRONO JOHANA………………………2 ND RESPONDENT
RULING
1. Before me for determination are two applications dated 12 th February,2026 and another dated 6 th May,2026. The application dated 12 th February,2026 is brought under the provisions of section 1A,1B and 3A of the Civil procedure Act, Section 47, 76 c and d of the Law of Succession Act, Cap 160 and Rule 44 of the Probate and Administration Rules. The beneficiary/ Applicant Taprantich Kiprono Johana is seeking for the following orders;-
i. Spent.
ii. That pending the hearing and determination of this application, the 1 st , 2 nd and 3 rd administrators David Kipkoros Teberewo, Joseph Toroitich Teberewo and Daniel Tallam be directed to produce and file before this court, a full accurate account of all the dealings from the date of appointment as an administrator-7 th May,2025 to the date of this order.
iii. That the grant issued to David Kipkoros Teberewo, Joseph Toroitich Teberewo and Daniel Tallam on the 7 th May,2025 be revoked and other administrators be appointed.
iv. That an order do issue directing the subcounty surveyor-Koibatek and/or any other licensed surveyor to sub-divide and cause the transfer of the Baringo/Perkerra/101/178, Kiponchos Sacho Farm-1.5 Acres, Sirwe Farm-3acres, Sirwe Eshonge Farm, Nyalelboch Farm to the respective beneficiaries as per the grant herein.
v. That the OCS Eldama Ravine police station be directed to provide security to the surveyor and/or ensure compliance of the orders issued herein.
vi. That costs of this application be provided for.
vii. Any other appropriate reliefs that this Honourable court may deem fit and just to grant.
2. The application is founded on the grounds that the estate herein was distributed vide the grant issued on the 7 th May,2025 wherein the administrators are the Respondents herein.
3. That the 1 st and 3 rd Respondents are frustrating the process of distribution of the estate herein to the detriment of the other beneficiaries. That they have refused to engage a qualified and licensed surveyor to sub-divide the estate herein to enable each beneficiary obtain the requisite title and thus complete the administration of the estate.
4. That the 1 st and 3 rd Respondents have failed to properly administer the estate herein, they have misappropriated and continue to misappropriate the assets and income of the estate of the deceased herein and they continue to do so in the utter disregard of their fiduciary duty to the other beneficiaries.
5. That it is nine(9) months since the grant was issued and the Respondents now need to comply with the mandatory provisions of Section 76 of the law of succession Act by rendering to court an account of the estate and the progress made in the distribution and/or transmissions if at all.
6. That the 1 st and 3 rd Respondent’s actions and/or omissions are exposing the estate to 3 rd party claims and grave economic losses.
7. That it is now imperative that the 1 st and 3 rd Respondents be directed to render an account of the assets and liabilities of the estate together with the extent and/or mode of the distribution as per the grant herein.
8. That if the 1 st and 3 rd Respondents cannot give an account and/or records of the estate, then they ought to relinquish their position and allow the 2 nd administrator to complete distribution of the estate herein.
9. The application dated 6 th May,2026 filed by the 1 st and 3 rd administrators/ Applicants David Kipkoros Teberewo and Daniel Tallam is brought under Rule 63 and 73 of the Probate and Administration Rules, Order 40 Rule 1 and Order 45 Rule 1 of the Civil Procedure Rules, Article 159 of the Constitution of Kenya for orders that:-
a. That this Honourable Court be pleased to grant a stay of execution and/or enforcement of the orders and/or Certificate of Confirmation of Grant issued on the 7 th day of May 2025.
b. That this Honourable Court be pleased to review and set aside and/or vary the mediation consent and all the subsequent orders confirming the grant issued on the 7 th day of May, 2025.
c. That upon setting aside of the orders resulting in the Certificate of Confirmation of Grant, this Honourable court be pleased to order that the case be reopened for hearing on the mode of distribution and the matter proceed from where it had reached and/or the matter be referred back for mediation before a different mediator.
d. That the costs of this Application be provided for.
10. The application is premised on the grounds that, the mediation consent and all subsequent orders was not freely and voluntarily entered into by all the beneficiaries of the estate of the Deceased herein.
11. That during the mediation process, the beneficiaries convened and reached a consensus on a fair and agreed mode of distribution of the estate which reflected the interest of all beneficiaries.
12. That during the mediation proceedings, certain beneficiaries were asked and/or directed to temporarily leave the mediation session with the understanding that discussions would continue transparently and inclusively.
13. That upon their return to the mediation session, it was discovered that the remaining parties had unilaterally altered and/or restructured the mode of distribution, resulting in a fundamentally different outcome from what had previously been agreed upon by the family.
14. That the applicants believe that the mediator was biased and pushed for the mediation consent to be entered into within a single day of mediation proceedings hence the coercion, undue influence, bias and unfairness.
15. That the mediator by removing other beneficiaries out of the room and recording a consent in their absence then calling them back in when some of the beneficiaries who remained inside the room had already signed the consent amounts to lack of transparency in the mediation process and it is as a result of this act that the beneficiaries seek for orders of stay, review and reopening of the case to give them room to ventilate their grievances before this just and fair honourable court.
16. That the revised mode of distribution was presented and subsequently adopted as a consent without the meaningful participation, approval, or informed consent of all beneficiaries.
17. That the process leading to the execution and/or adoption of the said consent was fundamentally flawed, as it was marred by elements of coercion, undue influence, misrepresentation, and/or material non-disclosure, thereby vitiating the validity of the consent in law.
18. That the Applicants and/or other beneficiaries were either misled as to the true import and effect of the consent or were placed under undue pressure to acquiescence, with the result that the purported consent does not reflect their true intentions, wishes, or agreement regarding the distribution of the estate.
19. That material facts relating to the estate, including but not limited to the full extent of the estate assets and/or the rightful entitlements of the beneficiaries, were not adequately disclosed at the time the consent was procured, thereby rendering the consent defective and incapable of sustaining a lawful confirmation of grant.
20. That this Honourable Court, in adopting the said consent, was not aware of the circumstances under which the mediation consent was obtained, and as such, the resultant orders confirming the grant were made on the basis of incomplete and/or misleading information, occasioning a miscarriage of justice.
21. That the mode of distribution embodied in the Certificate of Confirmation of Grant is manifestly unjust, inequitable, and prejudicial to the Applicant and other affected beneficiaries, as it diminishes their rightful shares and departs from the principles governing their fair distribution of estate.
22. That unless this Honourable Court intervenes by reviewing and setting aside the said mediation consent and the resultant confirmation orders, the estate stands to be distributed in a manner that is irregular, unlawful, and gravely prejudicial, thereby causing irreparable loss and injustice to the affected beneficiaries.
23. That this Application meets the threshold for review under Order 45 of the Civil Procedure Rules as imported by Rule 63 of the Probate and Administration Rules, in that there exists sufficient reason, being; coercion, undue influence, misrepresentation, and/or material non-disclosure, to warrant the intervention of this Honourable Court, particularly in light of the invalidity of the Consent underpinning the confirmation orders.
24. That it is in view of the foregoing that the process of enforcement of the orders in the Certificate of Confirmation of Grant has proved futile as the beneficiaries do not agree on the said mode of distribution on the ground.
25. That the Applicants are well aware of the application by the 2 nd Respondent on the change of administrators, and it is the Applicants' position herein that they do not oppose the administrator ship, but the mode of distribution and if there is a change of administrator ship before the issues herein are fully addressed, then, the new administrators will do with the estate as they wish in exclusion of the Applicants and/or beneficiaries herein.
26. That this Honourable Court is vested with inherent jurisdiction under Rule 73 of the Probate and Administration Rules to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process, and it is in the interest of justice that the orders sought herein be granted.
27. That it is just, fair, and equitable in the circumstances that the Consent be set aside, the confirmation orders be reviewed and/or vacated, and the issue of distribution of the estate be reopened for fresh consideration on merits or upon a valid and properly obtained consent of all beneficiaries.
28. The Application is opposed by Joseph Toroitich Teberewo, the 2 nd Administrator/1 st Respondent in a replying affidavit sworn on the 13 th May,2026. He avers that he has read and understood the beneficiary/protester and the 1 st and 3 rd administrators/applicants applications dated 12 th February,2026 and the summons dated 6 th May,2026 and the supporting affidavits sworn by the two administrators on the 12 th February,2026 and 6 th May,2026 respectively.
29. That the deceased namely Kapteberewo Koibos died on the 20 th November,2006 and at the time of his demise, the deceased had fairly distributed his estate to his dependants/beneficiaries particularly parcel number Baringo/Perkerra-101/178 at a public gathering he had convened at Tandui Primary school , to celebrate the recovery of the aforesaid assets by the beneficiary late husband and himself from a third party who had fraudulently caused himself to be registered as the proprietor.
30. That the two administrators herein where included in the distribution who never raised any objection to the mode of distribution by the deceased and after distribution, they took possession of their respective portions and started developing and processing their respective titles, some of the beneficiaries even sold their shares to third parties, though the deceased passed on before he could execute all the transfers.
31. That upon the demise they filed this petition to distribute the estate, however the Applicants and other beneficiaries opposed the deceased’s mode of distribution and in an attempt to resolve the issues, they held several family meetings under the guidance of the elders and the area chief and reached resolutions after resolutions which were later objected to by the Applicants and/or beneficiaries.
32. That they resolved to have the matter heard in court on the mode of distribution on this particular asset and several beneficiaries testified echoing the deceased’s mode of distribution with slight variation and before they could conclude, the court with the concurrence of all parties agreed to refer the matter to mediation on the singular issue of the mode of distribution.
33. He avers that at the mediation hearing which was attended by all beneficiaries of the estate including some of the grandchildren, each was given an opportunity by the mediator to postulate his/he preferred mode of distribution freely contrary to the applicants’ allegations that the mediations was not free or voluntarily.
34. That the mediation hearing was free and fair and nobody was sent outside, induced, coerced and or threatened to take a certain stand and/or append the signature to the mediation agreement.
35. That after lengthy and thorough mediations, they unanimously agreed on the deceased mode of distribution and they appended their signatures freely in the presence of the beneficiaries and the grandchildren who concurred with the mode of distribution.
36. That the mode of distribution was exhibited by the mediator before the beneficiaries and before the mediation agreement was executed contrary to the Applicants allegations that the entitlements were not adequately disclosed at the time of the execution of the mediation agreement and after the mediation agreement was duly executed, it was transmitted to court where it was adopted as a judgement of the court without objection from the applicants who were duly represented.
37. That the applicants allegations that the mediation was not transparent and/or that the mode of distribution was interfered with is an afterthought in that the applicants in the application dated 7 th April,2025, seeking to substitute a deceased administrator, the 3 rd administrator/applicant admitted that the mediation exercise was rigorous and the certificate of confirmation of grant ought to be executed promptly to avoid legal issues arising thereafter contrary to his allegations that the mediator was biased.
38. That the grant and the certificate of confirmation of grant were issued on the 7 th May,2025, one year ago, however the applicants have refused, failed and/or neglected to sign form 39 and/or assist in the subdivision of the estate as per the certificate of confirmation of grant.
39. That the applicants have refused, failed and or neglected to provide the necessary documents to facilitate the transfer the transmission of the estate contrary to their allegations that they are under a duty to ensure that the estate is fairly distributed.
40. That due to the administrators/applicants’ actions and/or omission, the beneficiaries have suffered prejudice, hardship and unnecessary delay in enjoying their lawful inheritance and it is in the interest of justice and for proper administration of the estate that the two administrators are removed and he be made the administrator.
41. The application dated 12 th February,2026 is opposed by the 3 rd administrator Daniel Tallam vide a replying affidavit sworn on the 17 th day of April,2026. He avers that the application is misleading, misconceived and an abuse of the court process.
42. That a grant of letters of administration was issued on the 7 th May,2025 appointing all the Respondents herein as administrators and it is not true that he has failed to administer the estate of the deceased, instead the administration process has involved all the administrators at different stages of administration.
43. That the 2 nd respondent Joseph Toroitich Teberewo has been handling land documentation, follow ups at the land registry due to his custody of most of the relevant documents and on several occasions, he has undertaken these processes without full involvement or consultation of the 1 st and 3 rd administrators and it is only when he fails to make further progress when he calls for the other administrators.
44. He avers that the application is in substance driven by the 2 nd administrator through the applicant and that the applicant has not been actively involved in the administration process and has only been brought in by the 2 nd administrator.
45. He denies that he has frustrated the distribution of the estate and that on the contrary, there has been lack of cooperation and coordination, particularly arising from the unilateral actions by the 2 nd administrator.
46. That most of the family members believe that the applicant and the 2 nd administrator arm-twisted them and it is for that reason that he is making a request for police assistance during the sub-division which he has no objection.
47. That the family has never sat down since the ruling to agree on the issue of subdivision because the 2 nd administrator has objected any form of meeting out of fear that his portion may be challenged.
48. He avers that he has not refused to engage a surveyor because the subdivision cannot be undertaken effectively without consensus among beneficiaries, availability of complete documentation, coordinated actions among all the administrators which has been made impossible by the 2 nd administrator as he is in custody of most documents.
49. That he denies the allegation of misappropriation of the estate assets and aver that the estate does not have a structured income-generating activity and any use of land has been informal and by various beneficiaries.
50. He avers that the removal of administrators at this stage will delay the administration process further and prejudice the beneficiaries. He states that he is willing to cooperate fully, participate in subdivision and engage all beneficiaries.
SUBMISSIONS
51. It was appropriate that the two applications be determined concurrently.
52. Parties agreed to canvass the two applications by way of written submissions.
53. The applicants in the application dated 6 th May,2026 submit that the issues to be determined are:-
a. Whether sufficient grounds have been established to warrant review, setting aside of the consent and the resultant confirmation orders.
b. Whether the Applicant has established grounds for stay of implementation of Certificate of Confirmation of Grant .
54. On whether sufficient grounds have been established to warrant review, setting aside of the consent and the resultant confirmation orders, they rely on Brooke Bond Liebiq Ltd v Mallya [1975] EA 266 where it was held that:
"A court cannot interfere with a consent judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties."
55. The Applicants submit that the impugned consent was not freely, voluntarily, and knowingly entered into and therefore cannot stand in law.
56. They contend that the evidence before this court demonstrates that during the mediation process, the beneficiaries convened and reached a consensus on a fair and agreed mode of distribution of the estate which reflected the interest of all beneficiaries. However, at some point, certain beneficiaries were asked and/or directed to temporarily leave the mediation session with the understanding that discussions would continue transparently and inclusively. It was upon their return to the mediation session that they discovered that the agreed mode of distribution had been altered without their participation and approval and later the revised arrangement was adopted as a consent despite lacking the concurrence of all beneficiaries.
57. That though the 2 nd Administrator is arguing that the Deceased had distributed the estate, particularly Baringo/Perkerra - 101/178 in a will, the same was not signed by the Deceased during his lifetime and it was also not ascertained by the court.
58. The Applicants submit that the exclusion of beneficiaries during mediation and unilateral alteration of the already agreed family mode of distribution constitute sufficient evidence of lack of full disclosure, procedural impropriety, and absence of genuine consent.
59. That the Court ought not to sanction a distribution process founded on exclusion and unilateral restructuring of an already agreed family arrangement. They place reliance in Uasin Gishu Weekly Advertiser Ltd v Abdul Aziz Kanji & 2 others [1992] KEHC 172 (KLR) it was stated that:
"Another point to remember is that under section 67(2) of the Civil Procedure Act once parties have entered into the judgment by consent the same is not appealable are can only be set aside on grounds which would necessitate setting aside a contract i.e., fraud, collusion or any other reason which would enable a court to set aside an agreement.
60. That it is evident that the revised consent was arrived at without participation of all the entitled beneficiaries and the court is urged to grant a stay of execution of the orders issued, review and set aside and/or vary the mediation consent and the resultant confirmation orders in the interest of justice.
61. On whether the Applicant has established grounds for stay of implementation of Certificate of Confirmation of Grant, the Applicants submit that unless stay is granted, the estate risks being distributed and/or transferred pursuant to the impugned Certificate of Confirmation of Grant, thereby rendering the present application nugatory.
62. That it has been demonstrated by the Applicants that the impugned consent is contested and that the intended distribution is likely to occasion grave prejudice to the other beneficiaries of the deceased.
63. They place reliance in the Court of Appeal case in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the court held that:
"It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory."
64. They argue that the interest of justice therefore preservation of the estate pending determination of the present Application.
65. They submit that the Applicants have proved their case to the required standard and are entitled to the orders sought in the Application.
66. The 2 nd administrator submits that the protestor filed a notice of motion application dated 12 th February 2026, seeking removal of the administrators particularly the 1 st and 3 rd Administrators among other orders urging that the aforesaid administrators had failed and/or neglected to administrator the estate one year down the line. That the court had to order that they sign form P39.
67. They submit that the 2 nd administrator did prepare the form P39’s executed them and transmitted them to the 1 st and 3 rd administrators for execution. That instead of signing the forms, they filed an application dated 6 th May 2026, seeking review and/or variation of the mode of distribution already adopted by this Honourable Court as a judgment pursuant to a mediation settlement agreement entered into by the parties.
68. They submit that they have demonstrated in the 2 nd administrators' replying affidavit, that the mediation process was above board and all the dependants and/or the beneficiaries of the estate of the deceased participated and presented their mode of distribution of the estate assets which were taken into consideration. That the applicants in their application dated 7 th April 2025, for substitution of a deceased administrator clearly stated that the mediation process was rigorous and they were looking forward to execute their mandate expeditiously to avoid legal wrangles which may arise.
69. That it is therefore not disputed that the parties voluntarily participated in the court-annexed mediation and subsequently executed the mediation settlement agreement setting out the mode of distribution of the estate.
70. That the said agreement was thereafter adopted as a judgment of this Honourable Court and consequently acquired the force and effect of a valid court judgment.
71. They contend that a consent judgment or mediation settlement adopted by the court is binding upon the parties and can only be set aside on grounds that would justify the setting aside of a contract, such as fraud, mistake, coercion, illegality or misrepresentation.
72. They submit that the Applicants have not demonstrated any fraud, coercion, mistake or misrepresentation that would warrant interference with the mediated settlement and/or the judgment.
73. That having voluntarily executed the mediation agreement and consented to its adoption as a judgment of the court, without any objection, then they cannot now approbate and reprobate by seeking to reopen issues already conclusively settled through a negotiated settlement.
74. They contend that litigation must come to an end and parties should not be permitted to endlessly reopen disputes merely because they have changed their minds or become dissatisfied with the outcome of a settlement they freely entered into.
75. On whether the applicants have satisfied the legal threshold for review, they submit that the law governing review is well settled under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
76. They submit that an applicant seeking review must demonstrate that there is discovery of new and important matter or evidence which, despite exercise of due diligence, was not within their knowledge and/ or Mistake or error apparent on the face of the record and/ or any other sufficient reasons.
77. They contend that the Applicants have failed to satisfy any of the above conditions as there are no new evidence which has been disclosed to this Honourable Court. The matters now being raised were within the Applicant's knowledge during mediation process and prior to the adoption of the mediation agreement as a judgment of the court.
78. That no error apparent on the face of the record has been demonstrated. That the judgment merely adopted the parties' mediation settlement agreement and nothing more.
79. They contend that the present application is therefore not a genuine application for review but an attempt to renegotiate and/or alter the terms of a validly concluded mediation settlement now a judgment of the court.
80. That it is trite that courts have consistently held that review jurisdiction should not be used as an avenue for a party to re-litigate issues or to appeal through the back door.
81. On whether the application is an abuse of the court process, they argue that the Applicants participated fully in the mediation process and freely consented to the agreed mode of distribution.
82. It is their submission that, the present application has been brought in bad faith and is intended to delay the conclusion of the administration and transmission of the estate to the rightful beneficiaries.
83. That allowing parties to casually reopen mediated settlements would defeat the very purpose of the court-annexed mediation, which is intended to foster finality, expeditious resolution of disputes and reduction of litigation.
84. They submit that the application is intended to occasion unnecessary delay and prejudice to the beneficiaries who are entitled to enjoy the fruits of the judgment already entered into by the court.
85. It is their submission that the Applicants have failed to establish any legal or factual basis warranting review and/or variation of the mediated settlement adopted as a judgment of the court. The court is urged to dismiss the application dated 6 th May 2026 with costs to the 2 nd administrator and the protestor.
86. It is therefore the 2 nd administrator/1 st respondents’ submission that the present application is merely an afterthought, forum shopping and a deliberate attempt to frustrate implementation of the confirmed grant and delay final distribution of the estate. That the Applicants have failed to satisfy the legal threshold for setting aside a consent judgment or for review under Order 45 of the Civil Procedure Rules.
87. The 2 nd administrator/1 st respondent urged the court to dismiss the Applicants’ Summons dated 6 th May 2026 with costs and allow the Respondent’s application dated 12 th February 2026 so as to facilitate implementation of the confirmed grant and expeditious conclusion of administration of the estate.
88. The 3 rd Beneficiary/Applicant on her part submits that the following issues arise for determination by this Honourable Court:-
i. Whether the Applicants have met the legal threshold for setting aside the mediation consent and the resultant consent judgment/orders issued on 7 th May 2025.
ii. Whether the Applicants have satisfied the requirements for review under Order 45 of the Civil Procedure Rules as read together with Rule 63 of the Probate and Administration Rules.
iii. Whether the Applicants are entitled to the orders sought in the Summons dated 6 th May 2026 and if not, whether the summons dated 12 th February 2026 is merited.
iv. Who should bear the costs of the application ?
89. On whether the Applicants have met the legal threshold for setting aside the mediation consent and the resultant consent judgment/orders issued on 7 th May 2025, it is submitted that it is now settled law that a consent judgment or order has contractual effe
[...truncated]
IN THE HIGH COURT OF KENYA AT KABARNET
MISC. SUCCESSION CAUSE NO.5 OF 2019
IN THE MATTER OF THE ESTATE OF THE LATE KAPTEBEREWO KOIBOS (DECEASED)
DAVID KIPKOROS TEREBEWO…...…1 ST ADMINISTRATOR/1 ST APPLICANT
DANIEL TALLAM………………….…3 RD ADMINISTRATOR/2 ND APPLICANT
SUSAN TALLAM TEBEREWO …………..…..BENEFICIARY/3 RD APPLICANT
KABON RONO…………………………..…… BENEFICIARY/4 TH APPLICANT SAMSON TEBEREWO KAIBOS……………...BENEFICIARY/5 TH APPLICANT
KIMARU TEBEREWO………………………..BENEFICIARY/6 TH APPLICANT
VERSUS
JOSEPH TOROITICH TEBEREWO..2 ND ADMINISTRATOR/1 ST RESPONDENT
TAPRANTICH KIPRONO JOHANA………………………2 ND RESPONDENT
RULING
1. Before me for determination are two applications dated 12 th February,2026 and another dated 6 th May,2026. The application dated 12 th February,2026 is brought under the provisions of section 1A,1B and 3A of the Civil procedure Act, Section 47, 76 c and d of the Law of Succession Act, Cap 160 and Rule 44 of the Probate and Administration Rules. The beneficiary/ Applicant Taprantich Kiprono Johana is seeking for the following orders;-
i. Spent.
ii. That pending the hearing and determination of this application, the 1 st , 2 nd and 3 rd administrators David Kipkoros Teberewo, Joseph Toroitich Teberewo and Daniel Tallam be directed to produce and file before this court, a full accurate account of all the dealings from the date of appointment as an administrator-7 th May,2025 to the date of this order.
iii. That the grant issued to David Kipkoros Teberewo, Joseph Toroitich Teberewo and Daniel Tallam on the 7 th May,2025 be revoked and other administrators be appointed.
iv. That an order do issue directing the subcounty surveyor-Koibatek and/or any other licensed surveyor to sub-divide and cause the transfer of the Baringo/Perkerra/101/178, Kiponchos Sacho Farm-1.5 Acres, Sirwe Farm-3acres, Sirwe Eshonge Farm, Nyalelboch Farm to the respective beneficiaries as per the grant herein.
v. That the OCS Eldama Ravine police station be directed to provide security to the surveyor and/or ensure compliance of the orders issued herein.
vi. That costs of this application be provided for.
vii. Any other appropriate reliefs that this Honourable court may deem fit and just to grant.
2. The application is founded on the grounds that the estate herein was distributed vide the grant issued on the 7 th May,2025 wherein the administrators are the Respondents herein.
3. That the 1 st and 3 rd Respondents are frustrating the process of distribution of the estate herein to the detriment of the other beneficiaries. That they have refused to engage a qualified and licensed surveyor to sub-divide the estate herein to enable each beneficiary obtain the requisite title and thus complete the administration of the estate.
4. That the 1 st and 3 rd Respondents have failed to properly administer the estate herein, they have misappropriated and continue to misappropriate the assets and income of the estate of the deceased herein and they continue to do so in the utter disregard of their fiduciary duty to the other beneficiaries.
5. That it is nine(9) months since the grant was issued and the Respondents now need to comply with the mandatory provisions of Section 76 of the law of succession Act by rendering to court an account of the estate and the progress made in the distribution and/or transmissions if at all.
6. That the 1 st and 3 rd Respondent’s actions and/or omissions are exposing the estate to 3 rd party claims and grave economic losses.
7. That it is now imperative that the 1 st and 3 rd Respondents be directed to render an account of the assets and liabilities of the estate together with the extent and/or mode of the distribution as per the grant herein.
8. That if the 1 st and 3 rd Respondents cannot give an account and/or records of the estate, then they ought to relinquish their position and allow the 2 nd administrator to complete distribution of the estate herein.
9. The application dated 6 th May,2026 filed by the 1 st and 3 rd administrators/ Applicants David Kipkoros Teberewo and Daniel Tallam is brought under Rule 63 and 73 of the Probate and Administration Rules, Order 40 Rule 1 and Order 45 Rule 1 of the Civil Procedure Rules, Article 159 of the Constitution of Kenya for orders that:-
a. That this Honourable Court be pleased to grant a stay of execution and/or enforcement of the orders and/or Certificate of Confirmation of Grant issued on the 7 th day of May 2025.
b. That this Honourable Court be pleased to review and set aside and/or vary the mediation consent and all the subsequent orders confirming the grant issued on the 7 th day of May, 2025.
c. That upon setting aside of the orders resulting in the Certificate of Confirmation of Grant, this Honourable court be pleased to order that the case be reopened for hearing on the mode of distribution and the matter proceed from where it had reached and/or the matter be referred back for mediation before a different mediator.
d. That the costs of this Application be provided for.
10. The application is premised on the grounds that, the mediation consent and all subsequent orders was not freely and voluntarily entered into by all the beneficiaries of the estate of the Deceased herein.
11. That during the mediation process, the beneficiaries convened and reached a consensus on a fair and agreed mode of distribution of the estate which reflected the interest of all beneficiaries.
12. That during the mediation proceedings, certain beneficiaries were asked and/or directed to temporarily leave the mediation session with the understanding that discussions would continue transparently and inclusively.
13. That upon their return to the mediation session, it was discovered that the remaining parties had unilaterally altered and/or restructured the mode of distribution, resulting in a fundamentally different outcome from what had previously been agreed upon by the family.
14. That the applicants believe that the mediator was biased and pushed for the mediation consent to be entered into within a single day of mediation proceedings hence the coercion, undue influence, bias and unfairness.
15. That the mediator by removing other beneficiaries out of the room and recording a consent in their absence then calling them back in when some of the beneficiaries who remained inside the room had already signed the consent amounts to lack of transparency in the mediation process and it is as a result of this act that the beneficiaries seek for orders of stay, review and reopening of the case to give them room to ventilate their grievances before this just and fair honourable court.
16. That the revised mode of distribution was presented and subsequently adopted as a consent without the meaningful participation, approval, or informed consent of all beneficiaries.
17. That the process leading to the execution and/or adoption of the said consent was fundamentally flawed, as it was marred by elements of coercion, undue influence, misrepresentation, and/or material non-disclosure, thereby vitiating the validity of the consent in law.
18. That the Applicants and/or other beneficiaries were either misled as to the true import and effect of the consent or were placed under undue pressure to acquiescence, with the result that the purported consent does not reflect their true intentions, wishes, or agreement regarding the distribution of the estate.
19. That material facts relating to the estate, including but not limited to the full extent of the estate assets and/or the rightful entitlements of the beneficiaries, were not adequately disclosed at the time the consent was procured, thereby rendering the consent defective and incapable of sustaining a lawful confirmation of grant.
20. That this Honourable Court, in adopting the said consent, was not aware of the circumstances under which the mediation consent was obtained, and as such, the resultant orders confirming the grant were made on the basis of incomplete and/or misleading information, occasioning a miscarriage of justice.
21. That the mode of distribution embodied in the Certificate of Confirmation of Grant is manifestly unjust, inequitable, and prejudicial to the Applicant and other affected beneficiaries, as it diminishes their rightful shares and departs from the principles governing their fair distribution of estate.
22. That unless this Honourable Court intervenes by reviewing and setting aside the said mediation consent and the resultant confirmation orders, the estate stands to be distributed in a manner that is irregular, unlawful, and gravely prejudicial, thereby causing irreparable loss and injustice to the affected beneficiaries.
23. That this Application meets the threshold for review under Order 45 of the Civil Procedure Rules as imported by Rule 63 of the Probate and Administration Rules, in that there exists sufficient reason, being; coercion, undue influence, misrepresentation, and/or material non-disclosure, to warrant the intervention of this Honourable Court, particularly in light of the invalidity of the Consent underpinning the confirmation orders.
24. That it is in view of the foregoing that the process of enforcement of the orders in the Certificate of Confirmation of Grant has proved futile as the beneficiaries do not agree on the said mode of distribution on the ground.
25. That the Applicants are well aware of the application by the 2 nd Respondent on the change of administrators, and it is the Applicants' position herein that they do not oppose the administrator ship, but the mode of distribution and if there is a change of administrator ship before the issues herein are fully addressed, then, the new administrators will do with the estate as they wish in exclusion of the Applicants and/or beneficiaries herein.
26. That this Honourable Court is vested with inherent jurisdiction under Rule 73 of the Probate and Administration Rules to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process, and it is in the interest of justice that the orders sought herein be granted.
27. That it is just, fair, and equitable in the circumstances that the Consent be set aside, the confirmation orders be reviewed and/or vacated, and the issue of distribution of the estate be reopened for fresh consideration on merits or upon a valid and properly obtained consent of all beneficiaries.
28. The Application is opposed by Joseph Toroitich Teberewo, the 2 nd Administrator/1 st Respondent in a replying affidavit sworn on the 13 th May,2026. He avers that he has read and understood the beneficiary/protester and the 1 st and 3 rd administrators/applicants applications dated 12 th February,2026 and the summons dated 6 th May,2026 and the supporting affidavits sworn by the two administrators on the 12 th February,2026 and 6 th May,2026 respectively.
29. That the deceased namely Kapteberewo Koibos died on the 20 th November,2006 and at the time of his demise, the deceased had fairly distributed his estate to his dependants/beneficiaries particularly parcel number Baringo/Perkerra-101/178 at a public gathering he had convened at Tandui Primary school , to celebrate the recovery of the aforesaid assets by the beneficiary late husband and himself from a third party who had fraudulently caused himself to be registered as the proprietor.
30. That the two administrators herein where included in the distribution who never raised any objection to the mode of distribution by the deceased and after distribution, they took possession of their respective portions and started developing and processing their respective titles, some of the beneficiaries even sold their shares to third parties, though the deceased passed on before he could execute all the transfers.
31. That upon the demise they filed this petition to distribute the estate, however the Applicants and other beneficiaries opposed the deceased’s mode of distribution and in an attempt to resolve the issues, they held several family meetings under the guidance of the elders and the area chief and reached resolutions after resolutions which were later objected to by the Applicants and/or beneficiaries.
32. That they resolved to have the matter heard in court on the mode of distribution on this particular asset and several beneficiaries testified echoing the deceased’s mode of distribution with slight variation and before they could conclude, the court with the concurrence of all parties agreed to refer the matter to mediation on the singular issue of the mode of distribution.
33. He avers that at the mediation hearing which was attended by all beneficiaries of the estate including some of the grandchildren, each was given an opportunity by the mediator to postulate his/he preferred mode of distribution freely contrary to the applicants’ allegations that the mediations was not free or voluntarily.
34. That the mediation hearing was free and fair and nobody was sent outside, induced, coerced and or threatened to take a certain stand and/or append the signature to the mediation agreement.
35. That after lengthy and thorough mediations, they unanimously agreed on the deceased mode of distribution and they appended their signatures freely in the presence of the beneficiaries and the grandchildren who concurred with the mode of distribution.
36. That the mode of distribution was exhibited by the mediator before the beneficiaries and before the mediation agreement was executed contrary to the Applicants allegations that the entitlements were not adequately disclosed at the time of the execution of the mediation agreement and after the mediation agreement was duly executed, it was transmitted to court where it was adopted as a judgement of the court without objection from the applicants who were duly represented.
37. That the applicants allegations that the mediation was not transparent and/or that the mode of distribution was interfered with is an afterthought in that the applicants in the application dated 7 th April,2025, seeking to substitute a deceased administrator, the 3 rd administrator/applicant admitted that the mediation exercise was rigorous and the certificate of confirmation of grant ought to be executed promptly to avoid legal issues arising thereafter contrary to his allegations that the mediator was biased.
38. That the grant and the certificate of confirmation of grant were issued on the 7 th May,2025, one year ago, however the applicants have refused, failed and/or neglected to sign form 39 and/or assist in the subdivision of the estate as per the certificate of confirmation of grant.
39. That the applicants have refused, failed and or neglected to provide the necessary documents to facilitate the transfer the transmission of the estate contrary to their allegations that they are under a duty to ensure that the estate is fairly distributed.
40. That due to the administrators/applicants’ actions and/or omission, the beneficiaries have suffered prejudice, hardship and unnecessary delay in enjoying their lawful inheritance and it is in the interest of justice and for proper administration of the estate that the two administrators are removed and he be made the administrator.
41. The application dated 12 th February,2026 is opposed by the 3 rd administrator Daniel Tallam vide a replying affidavit sworn on the 17 th day of April,2026. He avers that the application is misleading, misconceived and an abuse of the court process.
42. That a grant of letters of administration was issued on the 7 th May,2025 appointing all the Respondents herein as administrators and it is not true that he has failed to administer the estate of the deceased, instead the administration process has involved all the administrators at different stages of administration.
43. That the 2 nd respondent Joseph Toroitich Teberewo has been handling land documentation, follow ups at the land registry due to his custody of most of the relevant documents and on several occasions, he has undertaken these processes without full involvement or consultation of the 1 st and 3 rd administrators and it is only when he fails to make further progress when he calls for the other administrators.
44. He avers that the application is in substance driven by the 2 nd administrator through the applicant and that the applicant has not been actively involved in the administration process and has only been brought in by the 2 nd administrator.
45. He denies that he has frustrated the distribution of the estate and that on the contrary, there has been lack of cooperation and coordination, particularly arising from the unilateral actions by the 2 nd administrator.
46. That most of the family members believe that the applicant and the 2 nd administrator arm-twisted them and it is for that reason that he is making a request for police assistance during the sub-division which he has no objection.
47. That the family has never sat down since the ruling to agree on the issue of subdivision because the 2 nd administrator has objected any form of meeting out of fear that his portion may be challenged.
48. He avers that he has not refused to engage a surveyor because the subdivision cannot be undertaken effectively without consensus among beneficiaries, availability of complete documentation, coordinated actions among all the administrators which has been made impossible by the 2 nd administrator as he is in custody of most documents.
49. That he denies the allegation of misappropriation of the estate assets and aver that the estate does not have a structured income-generating activity and any use of land has been informal and by various beneficiaries.
50. He avers that the removal of administrators at this stage will delay the administration process further and prejudice the beneficiaries. He states that he is willing to cooperate fully, participate in subdivision and engage all beneficiaries.
SUBMISSIONS
51. It was appropriate that the two applications be determined concurrently.
52. Parties agreed to canvass the two applications by way of written submissions.
53. The applicants in the application dated 6 th May,2026 submit that the issues to be determined are:-
a. Whether sufficient grounds have been established to warrant review, setting aside of the consent and the resultant confirmation orders.
b. Whether the Applicant has established grounds for stay of implementation of Certificate of Confirmation of Grant .
54. On whether sufficient grounds have been established to warrant review, setting aside of the consent and the resultant confirmation orders, they rely on Brooke Bond Liebiq Ltd v Mallya [1975] EA 266 where it was held that:
"A court cannot interfere with a consent judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties."
55. The Applicants submit that the impugned consent was not freely, voluntarily, and knowingly entered into and therefore cannot stand in law.
56. They contend that the evidence before this court demonstrates that during the mediation process, the beneficiaries convened and reached a consensus on a fair and agreed mode of distribution of the estate which reflected the interest of all beneficiaries. However, at some point, certain beneficiaries were asked and/or directed to temporarily leave the mediation session with the understanding that discussions would continue transparently and inclusively. It was upon their return to the mediation session that they discovered that the agreed mode of distribution had been altered without their participation and approval and later the revised arrangement was adopted as a consent despite lacking the concurrence of all beneficiaries.
57. That though the 2 nd Administrator is arguing that the Deceased had distributed the estate, particularly Baringo/Perkerra - 101/178 in a will, the same was not signed by the Deceased during his lifetime and it was also not ascertained by the court.
58. The Applicants submit that the exclusion of beneficiaries during mediation and unilateral alteration of the already agreed family mode of distribution constitute sufficient evidence of lack of full disclosure, procedural impropriety, and absence of genuine consent.
59. That the Court ought not to sanction a distribution process founded on exclusion and unilateral restructuring of an already agreed family arrangement. They place reliance in Uasin Gishu Weekly Advertiser Ltd v Abdul Aziz Kanji & 2 others [1992] KEHC 172 (KLR) it was stated that:
"Another point to remember is that under section 67(2) of the Civil Procedure Act once parties have entered into the judgment by consent the same is not appealable are can only be set aside on grounds which would necessitate setting aside a contract i.e., fraud, collusion or any other reason which would enable a court to set aside an agreement.
60. That it is evident that the revised consent was arrived at without participation of all the entitled beneficiaries and the court is urged to grant a stay of execution of the orders issued, review and set aside and/or vary the mediation consent and the resultant confirmation orders in the interest of justice.
61. On whether the Applicant has established grounds for stay of implementation of Certificate of Confirmation of Grant, the Applicants submit that unless stay is granted, the estate risks being distributed and/or transferred pursuant to the impugned Certificate of Confirmation of Grant, thereby rendering the present application nugatory.
62. That it has been demonstrated by the Applicants that the impugned consent is contested and that the intended distribution is likely to occasion grave prejudice to the other beneficiaries of the deceased.
63. They place reliance in the Court of Appeal case in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the court held that:
"It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory."
64. They argue that the interest of justice therefore preservation of the estate pending determination of the present Application.
65. They submit that the Applicants have proved their case to the required standard and are entitled to the orders sought in the Application.
66. The 2 nd administrator submits that the protestor filed a notice of motion application dated 12 th February 2026, seeking removal of the administrators particularly the 1 st and 3 rd Administrators among other orders urging that the aforesaid administrators had failed and/or neglected to administrator the estate one year down the line. That the court had to order that they sign form P39.
67. They submit that the 2 nd administrator did prepare the form P39’s executed them and transmitted them to the 1 st and 3 rd administrators for execution. That instead of signing the forms, they filed an application dated 6 th May 2026, seeking review and/or variation of the mode of distribution already adopted by this Honourable Court as a judgment pursuant to a mediation settlement agreement entered into by the parties.
68. They submit that they have demonstrated in the 2 nd administrators' replying affidavit, that the mediation process was above board and all the dependants and/or the beneficiaries of the estate of the deceased participated and presented their mode of distribution of the estate assets which were taken into consideration. That the applicants in their application dated 7 th April 2025, for substitution of a deceased administrator clearly stated that the mediation process was rigorous and they were looking forward to execute their mandate expeditiously to avoid legal wrangles which may arise.
69. That it is therefore not disputed that the parties voluntarily participated in the court-annexed mediation and subsequently executed the mediation settlement agreement setting out the mode of distribution of the estate.
70. That the said agreement was thereafter adopted as a judgment of this Honourable Court and consequently acquired the force and effect of a valid court judgment.
71. They contend that a consent judgment or mediation settlement adopted by the court is binding upon the parties and can only be set aside on grounds that would justify the setting aside of a contract, such as fraud, mistake, coercion, illegality or misrepresentation.
72. They submit that the Applicants have not demonstrated any fraud, coercion, mistake or misrepresentation that would warrant interference with the mediated settlement and/or the judgment.
73. That having voluntarily executed the mediation agreement and consented to its adoption as a judgment of the court, without any objection, then they cannot now approbate and reprobate by seeking to reopen issues already conclusively settled through a negotiated settlement.
74. They contend that litigation must come to an end and parties should not be permitted to endlessly reopen disputes merely because they have changed their minds or become dissatisfied with the outcome of a settlement they freely entered into.
75. On whether the applicants have satisfied the legal threshold for review, they submit that the law governing review is well settled under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
76. They submit that an applicant seeking review must demonstrate that there is discovery of new and important matter or evidence which, despite exercise of due diligence, was not within their knowledge and/ or Mistake or error apparent on the face of the record and/ or any other sufficient reasons.
77. They contend that the Applicants have failed to satisfy any of the above conditions as there are no new evidence which has been disclosed to this Honourable Court. The matters now being raised were within the Applicant's knowledge during mediation process and prior to the adoption of the mediation agreement as a judgment of the court.
78. That no error apparent on the face of the record has been demonstrated. That the judgment merely adopted the parties' mediation settlement agreement and nothing more.
79. They contend that the present application is therefore not a genuine application for review but an attempt to renegotiate and/or alter the terms of a validly concluded mediation settlement now a judgment of the court.
80. That it is trite that courts have consistently held that review jurisdiction should not be used as an avenue for a party to re-litigate issues or to appeal through the back door.
81. On whether the application is an abuse of the court process, they argue that the Applicants participated fully in the mediation process and freely consented to the agreed mode of distribution.
82. It is their submission that, the present application has been brought in bad faith and is intended to delay the conclusion of the administration and transmission of the estate to the rightful beneficiaries.
83. That allowing parties to casually reopen mediated settlements would defeat the very purpose of the court-annexed mediation, which is intended to foster finality, expeditious resolution of disputes and reduction of litigation.
84. They submit that the application is intended to occasion unnecessary delay and prejudice to the beneficiaries who are entitled to enjoy the fruits of the judgment already entered into by the court.
85. It is their submission that the Applicants have failed to establish any legal or factual basis warranting review and/or variation of the mediated settlement adopted as a judgment of the court. The court is urged to dismiss the application dated 6 th May 2026 with costs to the 2 nd administrator and the protestor.
86. It is therefore the 2 nd administrator/1 st respondents’ submission that the present application is merely an afterthought, forum shopping and a deliberate attempt to frustrate implementation of the confirmed grant and delay final distribution of the estate. That the Applicants have failed to satisfy the legal threshold for setting aside a consent judgment or for review under Order 45 of the Civil Procedure Rules.
87. The 2 nd administrator/1 st respondent urged the court to dismiss the Applicants’ Summons dated 6 th May 2026 with costs and allow the Respondent’s application dated 12 th February 2026 so as to facilitate implementation of the confirmed grant and expeditious conclusion of administration of the estate.
88. The 3 rd Beneficiary/Applicant on her part submits that the following issues arise for determination by this Honourable Court:-
i. Whether the Applicants have met the legal threshold for setting aside the mediation consent and the resultant consent judgment/orders issued on 7 th May 2025.
ii. Whether the Applicants have satisfied the requirements for review under Order 45 of the Civil Procedure Rules as read together with Rule 63 of the Probate and Administration Rules.
iii. Whether the Applicants are entitled to the orders sought in the Summons dated 6 th May 2026 and if not, whether the summons dated 12 th February 2026 is merited.
iv. Who should bear the costs of the application ?
89. On whether the Applicants have met the legal threshold for setting aside the mediation consent and the resultant consent judgment/orders issued on 7 th May 2025, it is submitted that it is now settled law that a consent judgment or order has contractual effe
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