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ELCDismissedSiakago PM-ELC No. E066 of 2019 (appeal)· [2026] KEELC 4056 (KLR)

Macai v Machaki (Environment and Land Appeal E020 of 2024) [2026] KEELC 4056 (KLR)

Environment and Land Court
2 July 2026
ECE. C. Cherono
2,431 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that mediated land settlements and consent orders are binding contracts, and this appellant's late, unsupported fraud claims could not undo his settlement.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Embu against the ruling of Hon. Njoki Kahara, Senior Resident Magistrate, delivered on 21st February 2024 in Siakago PM-ELC No. E066 of 2019, dismissing an application by the Appellant seeking review and setting aside of a consent order adopted on 8th October 2020 and a declaration that the mediation settlement agreement in Siakago Mediation Cause No. Siak/Med/5/2020 was a nullity. The underlying suit, filed in 2019 by a father against his son, concerned the transfer of land parcel NTHAWA/GITIBURI/3707, allegedly procured fraudulently. After a February 2020 mediation session, a settlement agreement recording that the suit property would remain in the Respondent's name was adopted as a consent order. The Appellant contended he only signed an attendance sheet, was unwell on the adoption date, and that the true agreement was that the land revert to him, corroborated by a family member, Hellen Muriithi. The Respondent showed the Appellant had himself obtained orders in 2021 compelling execution of the consent order. E. C. Cherono, ELC Judge, restated the threshold for setting aside consent orders and mediated settlements (fraud, collusion, mistake, want of consensus), found the Appellant's uncorroborated, three-year-late assertion insufficient, held the approbate-and-reprobate principle and the delay fatal to his claim, and rejected the newly raised age and language ground for lack of pleading and evidence. The appeal was dismissed, the trial court's ruling upheld, the settlement and consent order declared valid and subsisting, and costs awarded to the Respondent (borne by the Appellant).

Key legal issues

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01

Legal threshold for setting aside a consent order and mediated settlement agreement

Holding

Consent orders have contractual effect and may only be set aside on grounds justifying rescission of a contract (fraud, collusion, public policy, want of consensus, mistake); Rule 39 of the Court-Annexed Mediation Rules confines setting aside to defined grounds reflecting the finality policy of Article 159(2)(c) and section 59B CPA

Reasoning

The court applied Brooke Bond Liebig v Mallya, Hirani v Kassam, Wasike v Wamboko and NSSF v Mwalo, holding the same threshold applies with equal or greater force to court-annexed mediation settlements, whose finality is favoured by the Constitution and the Civil Procedure Act.

p. 7
02

Whether fraud, misrepresentation or want of consensus was proved

Holding

Not proved; the Appellant's case rested on uncorroborated assertion made nearly three years later, with no allegation of forgery, no objection at adoption, and an interested family member's affidavit insufficient to unseat a signed settlement

Reasoning

The supporting affidavit did not allege forgery or identify who altered the terms; no complaint was lodged proximate to adoption; the corroborating affidavit's substance was not on the record; the Respondent's evidence that both parties adopted the consent freely was not seriously controverted.

p. 8
03

Effect of delay and subsequent conduct

Holding

The Appellant's 2021 application compelling execution of the consent order and the three-year delay materially undermine the credibility of his claim that he never consented

Reasoning

The court applied the doctrine of approbate and reprobate: the Appellant had invoked and benefited from the consent order before impeaching it, which sits uneasily with his present nullity claim and militates against disturbing the settlement.

p. 10
04

New ground of age and language difficulty raised on appeal

Holding

Failed; a wholly new factual ground not canvassed before the trial court and lacking evidentiary foundation will not be entertained

Reasoning

The ground did not feature in the Application, was not pleaded or particularised, there was no medical evidence, no averment on the language of mediation, and no explanation of what accommodation was sought or denied.

p. 10

Legal principles established

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  • A consent order or judgment, once duly adopted, has the effect of a contract between the parties and may only be set aside on grounds which would justify the rescission or setting aside of a contract — fraud, collusion, agreement contrary to public policy, want of consensus, or consent given without sufficient material facts or under mistake
  • The threshold applies with equal or greater force to settlement agreements arising from court-annexed mediation; a party seeking to unravel a mediated settlement bears a heavy burden of cogent, credible proof
  • A party may not approbate and reprobate — invoke the benefit of an order at one stage and later impeach its validity when it no longer suits him
  • On a first appeal the court must reconsider and re-evaluate the evidence afresh and reach its own independent conclusions, making allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The appeal be and is hereby dismissed
  2. 2.The Ruling of the trial court delivered on 21st February 2024 be and is hereby upheld
  3. 3.The costs of this appeal shall be borne by the Appellant
On appeal from
Senior Resident Magistrate's Court, Siakago
Siakago PM-ELC No. E066 of 2019
Jurisdiction invoked
First appeal from the magistrates' court to the Environment and Land Court (appellate jurisdiction over land disputes)

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, "Macai v Machaki (Environment and Land Appeal E020 of 2024) [2026] KEELC 4056 (KLR)", Case Analysis (2026). Siakago PM-ELC No. E066 of 2019 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4056/eng@2026-07-02

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