Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutHoma Bay ELC OS No. E001 of 2024· [2026] KEELC 5027 (KLR)

Ombok & 2 others v Ochieng (Enviromental and Land Originating Summons E001 of 2024) [2026] KEELC 5027 (KLR)

Environment and Land Court
15 July 2026
JWJohn Walter Wanyonyi
2,742 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Homa Bay court struck out an attempt to undo a mediated land settlement because the applicants first needed the court's permission under Rule 39.

What this practically means

#

Executive summary

#
The Applicants moved the Environment and Land Court at Homa Bay by Notice of Motion seeking stay of a Mediation Settlement Agreement dated 20th November 2025, adopted as a court order on 19th January 2026, and orders restraining the Respondent from dealing with compensation monies arising from the compulsory acquisition of the suit land, contending that the mediation agreement was concluded and adopted without the participation or consent of the 1st Applicant, a substantive party to the suit. The Respondent opposed, arguing that under Rule 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, no application to set aside a mediation settlement may be filed without prior leave of court, a mandatory jurisdictional requirement, and that the applicants had also failed to enjoin KeNHA and the National Land Commission. The court held that mediation settlements are final and enforceable as judgments under Section 59B of the Civil Procedure Act, and that upon adoption such agreements are treated as consent orders settable aside only on recognized grounds. A perusal of the record revealed that the Applicants never sought leave under Rule 39 before filing the application. Construing the word 'shall' in Rule 39 as mandatory, and endorsing the reasoning in Mbaja v Ouko and Kenya Commercial Bank v Specialized Engineering, the court held it lacked jurisdiction. The Notice of Motion was struck out with no order as to costs, each party bearing their own costs.

Key legal issues

#
01

Compliance with Rule 39 leave requirement as a jurisdictional precondition

Holding

The Applicants did not seek leave before filing the application to set aside the mediation settlement, rendering the application premature and incompetent

Reasoning

Rule 39(1) of the Mediation Rules mandates that no application to set aside an order or decree arising from a mediation settlement shall be filed except with leave of court. A perusal of the record showed no such leave. The court agreed with Aburili J in Mbaja v Ouko that non-compliance deprives the court of jurisdiction, and dismissed the argument that the rule cannot curtail the court's inherent jurisdiction.

p. 9
02

Whether 'shall' in Rule 39 is mandatory or directory

Holding

'Shall' is mandatory and strict compliance is required; failure renders the application bad in law

Reasoning

The court examined statutory interpretation principles, including the Longman and Black's Law Dictionary definitions of 'shall', and the test in Subrata v Union of India distinguishing mandatory and directory provisions, as well as Mativo J's holding in Equity Group Holdings. It concluded that Rule 39 is couched in mandatory terms and non-compliance is fatal.

p. 11

Legal principles established

#
  • An application to set aside an order or decree arising from a mediation settlement agreement must be filed only with the leave of the court, and non-compliance renders the application incompetent for want of jurisdiction
  • The word 'shall' in Rule 39 of the Mediation Rules is mandatory, not directory
  • Upon adoption, a mediation settlement agreement is treated as a consent order which cannot be varied or discharged except on recognized grounds such as fraud or collusion

Court orders

#
  1. 1.The Notice of Motion dated 8th June 2026 is struck out
  2. 2.No order as to costs
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Articles 25(c), 40, 47, 50 and 159 of the Constitution; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ombok & 2 others v Ochieng (Enviromental and Land Originating Summons E001 of 2024) [2026] KEELC 5027 (KLR)", Case Analysis (2026). Homa Bay ELC OS No. E001 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5027/eng@2026-07-15

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