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ELCAllowedNot stated in the judgment as provided· [2024] KEELC 6719 (KLR)

Mumanyi & another v Mokaya & another (Environment & Land Case 54 of 2007) [2024] KEELC 6719 (KLR)

Environment and Land Court
7 October 2024
MMM.D. Mwangi
2,413 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a mediated land settlement because the party's chosen advocate never signed it as she had instructed.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (M.D. Mwangi, J) determined the Plaintiffs' Notice of Motion dated December 13, 2023 seeking to set aside a Mediation Settlement Agreement dated August 21, 2023 executed in court-annexed mediation. The Plaintiffs, who purchased land jointly and later sold half an acre to the Defendants, complained that the Defendants had encroached on their remaining portion. In mediation, a Settlement Agreement was signed, but the 2nd Plaintiff, Mary Moraa Nyaoso Mumanyi, was absent (being out of the country) and had expressly instructed by email that both her husband (1st Plaintiff) and her Advocate, Mr. N.W. Amolo, should jointly sign any agreement on her behalf. The Advocate did not sign. She also complained that issues of general damages for trespass and costs of the suit were not addressed. The Defendants opposed, arguing the application was defective and that parties are contractually bound by a voluntarily executed agreement, with advocates playing only an advisory role. The court framed two issues: whether the Settlement Agreement was properly executed and whether the Applicants were entitled to the reliefs sought. Holding that Rule 32(1) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022 requires signature by parties and their advocates or representatives, and that the 2nd Plaintiff's instructions required her Advocate's signature, the court found the Agreement improperly executed and unenforceable under Section 3(3) of the Law of Contract Act. The court set aside the Agreement in its entirety, ordered the suit to proceed to hearing, and directed that costs of the application be in the cause.

Key legal issues

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01

Proper execution of a Mediation Settlement Agreement

Holding

The Agreement was improperly executed because the 2nd Plaintiff's expressly appointed Advocate did not sign it, contrary to her email instructions of 16th August 2023

Reasoning

Rule 32(1) requires signatures of parties, their advocates or representatives, and the Mediator. The 2nd Applicant's email appointed her husband and her Advocate jointly to sign on her behalf. Only the husband signed. The Advocate's role was thus not merely advisory under Rule 27(d). The omission invalidated the Agreement.

p. 5
02

Entitlement to setting aside reliefs

Holding

The Agreement, not reflecting the 2nd Applicant's wishes and failing the contractual execution threshold, was set aside in its entirety and the suit ordered to proceed to hearing

Reasoning

The 2nd Applicant repudiated the Agreement, demonstrating it did not reflect her wishes. Being improperly executed, it was unenforceable under Section 3(3) of the Law of Contract Act, warranting setting aside for non-compliance with contract execution procedure; the suit would proceed to full hearing.

p. 5

Legal principles established

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  • A Mediation Settlement Agreement must be duly signed by the parties, their advocates or representatives and the Mediator under Rule 32(1); non-compliance with execution instructions invalidates the agreement
  • Mediation Settlement Agreements are in the nature of consent orders and can only be set aside on grounds justifying setting aside a contract
  • A settlement executed contrary to a party's express instructions and without the signature of the duly appointed advocate does not meet the threshold of Section 3(3) of the Law of Contract Act and is unenforceable

Court orders

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  1. 1.The Mediation Settlement Agreement dated August 21, 2023 be and is hereby set aside and/or vacated in its entirety
  2. 2.This suit shall proceed to hearing
  3. 3.The costs of the application shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19(3), 20(1)(2)(3)&(4), 50(1), 159(2)(c)
  • Civil Procedure ActSection 59B(1)&(4)
  • Civil Procedure (Court-Annexed Mediation) Rules, 2022Rules 16(1)&(2), 17(1), 27(d), 32(1), 34, 35
  • Law of Contract ActSection 3(3)

Cases cited (5)

  • Re Estate of B.M. (Deceased)
    [2019] eKLR
  • Kenya Commercial Bank Ltd -vs- Benjoh Amalgamated Ltd
    Civil Appeal No. 276 of 1997
  • Flora N. Wasike v Destimo Wamboko
    [1988] eKLR
  • Board of Trustees National Social Security Fund v Michael Mwalo
    [2015] eKLR
  • Gurpreet Singh v Chatur Bhuj Goel
    [1988] AIR 400
Jurisdiction invoked
Articles 19(3), 20(1)(2)(3)&(4), 50(1) & 159(2)(c) of the Constitution; Section 59B(1)&(4) of the Civil Procedure Act; Rules 32(1) and 35 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mumanyi & another v Mokaya & another (Environment & Land Case 54 of 2007) [2024] KEELC 6719 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6719/eng@2024-10-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.