Kibosia & 11 others v Chebelieni & another (Civil Appeal E162 of 2021) [2024] KECA 1269 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a mediated estate settlement is invalid unless every party signs it, so the family's dispute returns to the High Court for a fresh hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether a consent judgment arising from a mediation settlement agreement may be set aside where not all parties signed the agreement
Yes. Signing expresses concurrence; failure to sign is an expression of dissent and means there was no proper mediation settlement agreement for the court to adopt as a consent judgment.
Rule 12(a) of the Practice Direction on Court Annexed Mediation (Amendment) 2018 made it mandatory for the parties to sign the agreement in prescribed Form 8. Only 10 of 24 beneficiaries signed. Signing expresses assent to the mediation outcome; failure to assent is an expression of dissent. Some absent beneficiaries were unrepresented, so their dissent could not be imputed. The mediator should have reported a lack of agreement rather than allowing the unsigned agreement to be adopted as a consent judgment.
Whether conducting and concluding mediation in a single session breached the Practice Direction
No. The rules did not prescribe the number of sessions, so the mediator could not be faulted for concluding mediation in one session.
The Practice Direction on Court Annexed Mediation (Amendment) 2018 contained no specification of the number of sessions required before a settlement agreement could be reached, and did not expressly rule out conclusion of mediation in one session. There was also no evidence the appellants were unaware of the mediation date; they were required to attend whether by themselves or with advocates or representatives. The appeal could not succeed on the process ground.
Which grounds apply to setting aside a consent judgment adopted from mediation under the 2018 Practice Direction
The Practice Direction contained no express grounds, so the court falls back on the traditional grounds for setting aside a consent order or decree.
Unlike the Civil Procedure (Court-Annexed Mediation) Rules, 2022 which at rule 39(3) enumerates grounds such as mediator misconduct, fraud, collusion or fundamental mistake, the 2018 Practice Direction had no equivalent provision. The court therefore applies the traditional contract-analogy grounds: fraud, collusion, agreement contrary to policy of the court, or consent given without sufficient material facts or in misapprehension of material facts.
Legal principles established
#- A mediation settlement agreement under the Practice Direction on Court Annexed Mediation (Amendment) 2018 must be signed by all parties before it can be adopted as a consent judgment; failure by all parties to sign means there is no valid settlement agreement.
- A consent judgment can only be set aside on grounds that would justify setting aside a contract, such as fraud, collusion, misapprehension or ignorance of material facts.
- Mediation is a consensus-based process; where parties fail to agree, the mediator must report back to the court that no agreement has been reached, and not all cases referred for mediation must result in settlement agreements.
Court orders
#- 1.Appeal allowed; the ruling of the High Court dated July 5, 2021 set aside in its entirety
- 2.The appellants' application dated March 3, 2020 to set aside the order or judgment of the trial court dated February 17, 2020 allowed
- 3.The respondents' application dated January 12, 2021 dismissed
- 4.The succession cause remitted to the High Court at Eldoret for hearing and determination on merit by any judge, other than SM Githinji, J
- 5.Advocates for the parties to place the matter before the Presiding Judge of the High Court at Eldoret for directions on the hearing of the succession cause on a priority basis
- 6.Each party to bear their own costs of the appeal
- On appeal from
- High Court
- Not stated in judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under rule 31(1)(a) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- JMK v MMM (Environment and Land Appeal E051 of 2021) [2025] KEELC 6741 (KLR)[2025] KEELC 6741 (KLR)7 Oct 2025followed
Cite this brief
#Cite this brief
Caselaw, "Kibosia & 11 others v Chebelieni & another (Civil Appeal E162 of 2021) [2024] KECA 1269 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1269/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.