Wesonga v Wesonga & another (Environment and Land Appeal E060 of 2024) [2026] KEELC 3912 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that once you sign a mediation settlement agreement, you can only escape it with court leave and proof of a strong contractual reason.
What this practically means
#Executive summary
#Key legal issues
#Threshold for leave to set aside a mediation settlement agreement under Rule 39
The appellant failed to demonstrate a prima facie case; the alleged mistake, misrepresentation and invalidity grounds were unestablished and the matters were within his knowledge at execution
Rule 39 requires leave, granted only where the applicant demonstrates a prima facie case of mediator misconduct, fraud or fundamental mistake; fraud, collusion or misrepresentation by another party; fundamental mistake as to the subject matter; legal incapacity; or invalidity or unenforceability. The appellant voluntarily signed the agreement, did not allege coercion, undue influence or fraud, and later sought to implement the agreement, showing the matters were known to him at execution.
Nature of a mediation settlement agreement
It is a contract between the parties, not a decision of the mediator, and cannot be attacked on the footing that the mediator erred in law
The court explained that a mediator merely facilitates dialogue and has no authority to impose a resolution; the mediator was not applying sections 24, 25, 26 and 28 of the Land Registration Act, was not determining trust, and made no findings. To set aside a settlement, contractual grounds must be demonstrated. The appellant's complaints that the mediator failed to test evidence or apply the law were therefore baseless.
Whether the mediation agreement was invalid or unenforceable under the Land Registration Act
No; no findings were made by the mediator and no law was breached; the settlement was fair and enforceable
The appellant's reliance on sections 24, 25, 26 and 28 of the Land Registration Act was misplaced because the suit was resolved by agreement, not trial, so trust did not need proof. The agreement granted the appellant one acre while other grandsons got nothing, so it favoured him and was not unfair or unconscionable. Enforcement is possible through execution of transfer documents or by the Executive Officer of the trial court.
Whether the titling of the trial decision as a judgment was a ground of appeal
No; it was a clerical mistake by court registry staff in uploading the ruling on the CTS, rectifiable under section 99 of the Civil Procedure Act
The hard copy of the ruling was correctly titled as a ruling on the application dated 19th June 2024. What was uploaded on the CTS as a judgment was only part of the ruling, an error attributable to the registry. Such a clerical mistake cannot form the basis of an appeal and the trial court was directed to upload the entire ruling as a ruling.
Costs in family disputes
Costs follow the event under section 27 of the Civil Procedure Act; family relationship does not automatically entitle a party to an order that each party bear own costs, particularly where the application was vexatious and an abuse of process
The appellant approbated and reprobated, treating the respondents as family when convenient and denying they were of his clan when convenient. Having voluntarily signed the agreement and sought its implementation, his fresh application against his aunties was vexatious and an abuse of the court process, justifying costs against him both in the trial court and on appeal.
Legal principles established
#- An application to set aside an order or decree arising from a mediation settlement agreement may only be filed with leave of court, granted where a prima facie case under Rule 39(3) is demonstrated
- A mediation settlement agreement is a contract of the parties, not a decision of the mediator, and grounds for setting aside a contract must be demonstrated
- A mediator does not decide the dispute or apply statutes like the Land Registration Act; mediation is not a trial
- That a case involves family members is not an automatic ground for each party bearing own costs
- A first appellate court reanalyzes the record and determines whether the trial court's conclusions should stand
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- 2.The trial court is directed to correct the error by uploading the whole ruling of the trial court on the CTS as a ruling and not as a judgment
- 3.The appellant to bear the costs of the appeal
- On appeal from
- Chief Magistrate's Court, Mumias (PM ELC)
- Mumias PM ELC CASE NO. E015 OF 2023
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's ruling under the Civil Procedure Act; challenge to leave to set aside a mediation settlement agreement under Rule 39 of the Civil Procedure (Court Annexed Mediation) Rules, Legal Notice 145 of 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wesonga v Wesonga & another (Environment and Land Appeal E060 of 2024) [2026] KEELC 3912 (KLR)", Case Analysis (2026). Mumias PM ELC Case No. E015 of 2023 (appeal against ruling of 19th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3912/eng@2026-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.