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ELCStruck OutELCLC No. 21 of 2021· [2026] KEELC 6031 (KLR)

Peter Okore Ondu (Substituted by Mathew Obunga Okore) v Pius Din (Substituted by Monica Mugoya), Joseph Mboya & Simon Ondu

Environment and Land Court
23 September 2026
ANA. NYUKURI
1,103 words in judgment
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The bottom line

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A Kenyan court struck out an attempt to undo a mediated land settlement because the applicants never got the court's permission required before filing.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kakamega (A. Nyukuri, J) on a Notice of Motion dated 21st January 2026 in which the defendants sought to set aside the consent and consequential orders adopting a mediation agreement in this long-running land dispute over Kakamega/Shambarere/1233, and to compel the plaintiff's family to vacate 2.5 acres of that land within sixty days. The 1st defendant, a 95-year-old widow, deponed that the mediation agreement required her to receive 1.5 acres within the Efuetere locality not more than 15 kms away, that the land sourced by the plaintiff at Butsotso/Ingotsi breached those terms, and that she no longer wished to pursue the agreement. The plaintiff opposed, showing substantial compliance by obtaining Butsotso/Ingotse/4104 for transfer, noting the defendants' own non-compliance, an earlier dismissed application by the 3rd defendant on 25th April 2023, and the requirement of leave under Rule 39(1) of the Court-Annexed Mediation Rules. The court framed three issues: res judicata, competence for want of leave, and the threshold for setting aside. It held the application was not res judicata because the prior application sought leave while the present one sought setting aside directly. However, finding no leave of court had been sought or obtained as Rule 39(1) mandates, the court struck out the application as incurably incompetent, with costs to the plaintiff. The merits of the setting-aside grounds were not reached.

Key legal issues

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01

Res judicata given the earlier dismissed application of 29th December 2022

Holding

Not res judicata: the earlier application sought leave to set aside the mediation agreement, whereas the current application seeks the setting aside itself, so the issues differ

Reasoning

Section 7 of the Civil Procedure Act bars re-litigation of issues directly and substantively in issue between the same parties already determined on merit. The 29th December 2022 application by the 3rd defendant sought leave to apply to set aside the mediation agreement and was dismissed on merit. The present application does not seek leave; it directly seeks to set aside the agreement. The issues therefore differ and res judicata does not apply.

p. 7
02

Competence of the application for want of leave of court

Holding

The application is incurably incompetent and struck out because no leave of court was sought or obtained before filing it

Reasoning

Rule 39(1) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022 mandates that no application for setting aside an order or decree arising from a mediation settlement agreement shall be filed except with leave of court. The applicant conceded or did not demonstrate that leave was obtained. The plaintiff pointed out this requirement in opposition. Since the condition precedent was not met, the court did not reach the merits of whether grounds for setting aside were established.

p. 7

Legal principles established

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  • An application to set aside an order or decree arising from a mediation settlement agreement must first obtain leave of court under Rule 39(1); filed without leave it is incurably incompetent and liable to be struck out

Court orders

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  1. 1.The application dated 21st January 2026 is struck out with costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; 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, "Peter Okore Ondu (Substituted by Mathew Obunga Okore) v Pius Din (Substituted by Monica Mugoya), Joseph Mboya & Simon Ondu", Case Analysis (2026). ELCLC No. 21 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6031/eng@2026-09-23

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