Kiplori Kiptoo alias Sokome Kiptoo & 3 others v Rono Joseph Kimutai & 4 others

See section 1A (1) of the CPA; section 3(1) of the ELC Act; and Practice Direction 4 of the PDELC. (2) The framework for giving effect to the oxygen principle resides in the double-edged and symmetrical obligations reposed in both the Court and parties. On one hand, parties and their advocates, if any, are obligated to assist the Court to further the said oxygen principle by inter alia, participating in the processes of the Court and complying with the directions and orders of the Court. See sections 1A(3) of the CPA and 3(3) of the ELC Act. On the other hand, in striking a delicate balance towards attainment of the said oxygen principle, the Court is obligated to progress all matters committed to it for resolution for the purpose of attaining the just determination; efficient disposal; efficient use of the available judicial and administrative resources; the timely disposal thereof to keep in check inter alia the cost element of suits; leveraging suitable technology; and serving the ends of justice in this regard. See section 1B of the CPA; and Practice Direction 23(m) of the PDELC. (3) Accordingly, whenever a Court is construing any of the provisions of the CPA; ELC Act and Rules under both Acts, the Court is enjoined to always train its eye on giving effect to the said oxygen principle. See section 1A (2) of the CPA; section 3(2) of the ELC Act; and Practice Directions 4 & 23(m) of the PDELC. (4) The Constitution of Kenya and The Social Transformation Through Access to Justice Vision of the Chief Justice (hereinafter “STAJ”) desires a Judiciary that enforces corrective, transformative and justice-seeking reliefs. The Constitution thus recognizes the principle that Judges are not merely dispute resolvers but custodians of justice with the attendant duty to train their eyes on people-centred justice. (5) In this connection, through the lens of multi-door approach to justice, the said people-centered justice can as well be served through ADR. It will be recalled that STAJ and the Performance Management and Measurement Understanding (hereinafter “PMMU”) executed by this Court, anticipates determination of this suit within one year from the date of filing. This ambitious timeline translates that all parties must work round the clock, within ambitious and strict short timelines to be set by this Court and in accordance with the Overriding Objective of the civil procedure rules under sections 1A and 1B of the CPA and section 3 of the ELC Act (to facilitate just, expeditious, proportionate, and affordable resolution of disputes). Each party and Advocate must thus discharge their obligation to assist this Court achieve the said Oxygen Principle. (6) Beyond Articles 60(1)(g) and 159(2)(c) of the Constitution, ADR is firmly erected on the firm foundation of Article 1 of the Constitution. Page 2 of 8

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Article 1 of the Constitution recognizes constituent power (that the people of Kenya can exercise their sovereign power directly or indirectly). (7) And so, provided that ADR is not applied in a manner that contravenes the Bill of Rights; repugnant to justice and morality; or results in outcomes that are repugnant to justice or morality; or is inconsistent with this Constitution or any written law, Article 159(2)(c) of the Constitution - which provides that “(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)” - enjoins this Court to promote ADR. (8) Special ADR attention is paid to land disputes through Article 60(1)(g) of the Constitution which makes provision for principles of land administration and management as follows: “(g) encouragement of communities to settle land disputes through recognised local community initiatives consistent with this Constitution.” (9) Further, Practice Direction 7 of the PDELC obligates the Court to promote AJS. It further encourages parties to as far as possible, consider AJS. In addition, this Court may exercise its discretionary power to refer a matter to ADR under Practice Direction 23(k) of the PDELC. Besides, at any stage, the Court may refer a matter to ADR in accord with Practice Direction 25(f) of the PDELC. (10) How then is ADR invoked? The law provides that the Court may either on the motion of the parties or on its own motion where it deems it appropriate to do so or where the law so requires, direct that any dispute committed to the Court for resolution be referred to ADR. See section 59B of the CPA which provides that “(1) The Court may — (a) on the request of the parties concerned; or (b) where it deems it appropriate to do so; or (c) where the law so requires, direct that any dispute presented before it be referred to mediation.” Beyond mediation, the Court may direct that a suit be referred to any other method of ADR where the parties agree or the Court considers the case suitable for such referral. See section 59C of the CPA which provides that “(1) A suit may be referred to any other method of dispute resolution where the parties agree or the Court considers the case suitable for such referral.” (11) In this matter, upon hearing the first Plaintiffs’ principal witness - the 1st Plaintiff herein - on the 29 th day of June 2026; and upon noting that there was a related matter on the same suit property being Eldoret ELC Case Number 943 of 2012, which was resolved by way of a Consent Judgment; and having further noted that the Plaintiffs herein filed this suit on basis that they were allegedly excluded in Eldoret ELC Case Number 943 of 2012; and in discharging the obligation of this Court of giving effect to the said oxygen principle pursuant to Page 3 of 8

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sections 1A (2) of the CPA and 3(2) of the ELC Act; and in giving further effect to the constitutional principle which governs exercise of judicial authority in relation to alternative mechanisms of dispute resolution (hereinafter “ADR”) residing in Articles 1, 159(2)(c), and 60(1)(g) of the Constitution; sections 59B and 59C of the CPA; Order 11, Rule 3 (a) - (c) & Rule 3 (8)(b) of the CPR; and Practice Directions 7, 23(k) & 25(f) of the PDELC; and having found no compelling reasons as contemplated by Article 159(3) of the Constitution which would militate against venturing into this dispute resolution pathway (and specifically that the said alternatives shall be used in a way that contravenes the Bill of Rights; is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or is inconsistent with this Constitution or any written law); and having subjected the matter to the screening criteria set out under Rule 7 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, this Court found this matter appropriate for ADR. (12) Accordingly, on the 6 day of July 2026, this Court directed parties to consider the most suitable ADR mechanism - between Court -Annexed Mediation and Alternative Justice System - to resolve this dispute in order to achieve substantive justice so dearly desired by Article 159(2) (d) of the Constitution. A mention was slotted on the 7th day of July 2026, to receive a report from the parties and for further directions. th (13) On the 7th day of July 2026, all parties appeared in Court physically and this Court received a Report from Mr. Esikuri for the Plaintiffs and Mr. Kibii for the 1st, 3rd and 4th Defendants. However, Mr. Cheruiyot for the 2nd Defendant did not appear. The 5th Defendant appeared in person although he has never entered appearance. Both learned Counsel Mr. Esikuri and Mr. Kibii intimidated to this Court that upon advising their respective clients and seeking further instructions, their clients instructed them to elect Court-Annexed Mediation. In addition, learned Counsel Mr. Kibii requested the Court to consider appointing an advocate of the High Court as a mediator, considering the nature of the matter, the number of parties involved and the complexity of the matter. (14) Consequently, invoking the powers reposed upon this Court by Article 159(2)(c) of the Constitution; section 59B(1)(b) of the CPA; and Rule 5 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, this Court directed that: (a) This file be placed before the Mediation Deputy Registrar not later than the 9th day of July 2026. (b) The Mediation Deputy Registrar shall open a Mediation File and appoint an Accredited Mediator, who shall be an Advocate of the High Court with sufficient experience to help parties in this matter to resolve the dispute, due Page 4 of 8

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consideration paid to the nature of this matter, the number of parties involved and the complexity thereof, not later than the 16th day of July 2026. (c) In accordance with Rules 37(2) read with Rule 30 (c) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, the Mediator is directed to conclude the mediation proceedings and file a Report within sixty (60) days from the date he/she was appointed, unless an extension is sought and secured from this Court in accordance with Rule 30(c) read with Rule 37(3), (4) & (7) and read further with Rule 55 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022. (d) There will be a mention on the 24 th day of September 2026 for further directions of this Court. (15) On the 24 day of September 2026, Mr. Esikuri for the Plaintiffs; Mr. Kibii for the 1st, 3rd and 4th Defendants; and Mr. Changwon for the 2 nd Defendant intimated to this Court that parties had entered a Mediation Settlement Agreement dated 3rd September 2026 (hereinafter “the Agreement”). th (16) A Mediation Settlement Agreement is by all standards a contract binding on the parties. It bears a contractual effect. (17) The law requires that such an agreement shall be recorded in writing and registered with the Court which gave the mediation directions and shall be enforceable as if it were a judgment of that Court. A Mediation Settlement Agreement is anchored in law and specifically section 59B of the CPA, which stipulates that “(1) The Court may— (a) on the request of the parties concerned; or (b) where it deems it appropriate to do so; or (c) where the law so requires, direct that any dispute presented before it be referred to mediation. (2) Where a dispute is referred to mediation under subsection (1), the parties thereto shall select for that purpose a mediator whose name appears in the mediation register maintained by the Mediation Accreditation Committee. (3) A mediation under this Part shall be conducted in accordance with the mediation rules. (4) An agreement between the parties to a dispute as a result of a process of mediation under this Part shall be recorded in writing and registered with the Court giving the direction under subsection (1), and shall be enforceable as if it were a judgment of that Court. (5) No appeal shall lie against an agreement referred to in subsection (4).” Page 5 of 8

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(18) Upon conclusion of the signing the agreement by all parties as contemplated under Rule 30 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, the mediator is required to file it in Court within ten days after the conclusion of the mediation and provide each party or party’s advocate or representative with a copy thereof. See Rule 32(2) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022. (19) The Agreement may be adopted either in the presence of parties or in absentia. Put differently, it shall not be necessary for the parties or the mediator to attend Court for purposes of adoption of the Agreement and such proceedings may be conducted in chambers or virtually. However, if the Court so finds it necessary, it may seek further clarification from the mediator, each party or the party’s representative before adopting the settlement agreement. See Rule 34 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022. (20) The duty reposed upon this Court by Rule 34 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, is to receive and consider the agreement with a view of adoption as a Judgment of this Court or rejection. In considering the agreement for adoption or rejection, this Court will inter alia consider a host of key factors clustered as follows: (a) Whether the Agreement is in writing and filed Court as per section 59B of the CPA; and (b) Whether there is substantial compliance with the Civil Procedure (Court-Annexed Mediation) Rules, 2022, including but not limited to Rule 32 and 33 thereof; and (a) Whether ex facie, factors which can justify vitiation or rescission or repudiation of a contract are present namely (i) misconduct, fraud, a fundamental mistake by the mediator as relates to the mediation proceedings that goes to the core of the matter; (ii) fraud, collusion, or misrepresentation by any party to the mediation (other than the party applying) or any witness or person who took part in the proceedings and whose participation materially affected the outcome; (iii) a fundamental mistake by any or all of the parties to the mediation as to the existence or state of the subject matter, person or thing; or to any set of facts that materially affected the parties’ decision to enter into the subject agreement and which has rendered such agreement unfair and inequitable; (iv) where a party was, at the time of the making of the agreement, under some legal incapacity to take part in the subject mediation proceedings or to conclude and execute a binding settlement; or (v) where the settlement agreement is invalid under Kenyan or international law, or is or has Page 6 of 8

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become incapable of enforcement under Kenyan law; (vi) Other factors which can vitiate a contract under common law such as duress, coercion, unconscionability and undue influence. See Rule 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022; and the common law principles as construed in Flora N. Wasike vs. Destimo Wamboko [1988] eKLR, per Hancox JA (as he then was) with Nyarangi & Platt Ag JJA (as they then were) concurring; Purcell vs. F C Trigell Ltd [1970] 2 All ER 671, at page 676, per Winn LJ.; Kinch vs. Walcott [1929] AC 483; Law vs. Law [1905] 1 Ch 140, at 158; Kenya Commercial Bank Ltd vs. Benjoh Amalgamated Ltd, per Githinji J., (as he then was); Kenya Commercial Bank Ltd vs. Specialised Engineering Co. Ltd [1982] KLR 485, per Harris, J. (as he then was); Brooke Bond Liebig Ltd vs. Mallya [1975] EA 266, at 269, per Law Ag P (as he then was); de Lasala vs. de Lasala [1980] AC 546; Samuel Mbugua Ikumbu vs. Barclays Bank of Kenya Limited [2015] eKLR, per Koome, Kantai, JJA; Azangalala, JA (as he then was); Hirani vs. Kassim [1952] EACA 131; Ndirangu vs. Commercial Bank of Africa Nairobi [2002] 2 KLR 603, Oguk, J. (as he then was); Mursal Guleid & 2 others vs. Daniel Kioko Musau [2020] eKLR, D.K. Kemei, J.; Munyiri vs. Ndunguya [1985] eKLR; Esso Petroleum Company Limited vs. Mardon [1976] 2 All ER 5; Bisset vs. Wilkinson [1927] AC 177); Horsfall vs. Thomas [1862] 1 H&C 90; Long vs. Lloyd [1958] 1 WLR 753, et alia. (21) Upon addressing my judicial mind to the Agreement and upon subjecting it to the foregoing factors, this Court finds and so holds that: (a) The Agreement is in writing and filed Court as per the mandatory requirements of section 59B of the CPA; and (b) There is substantial compliance with the Civil Procedure (Court- Annexed Mediation) Rules, 2022, including but not limited to Rule 32 and 33 thereof; and (c) Ex facie, this Court has found no factors which can justify vitiation or rescission or repudiation of a contract, either under Rule 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022 or under common law. (22) Reasons wherefore this Court adopts the Mediation Settlement Agreement dated 3rd September 2026 as a Judgment of this Court, in exercise of the powers reposed on this Court by section 59B (4) of the Civil Procedure Act as read with Rule 34 of the Civil Procedure (CourtAnnexed Mediation) Rules, 2022. Page 7 of 8

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(23) This file is marked as closed. (24) Orders and Decree accordingly. Virtually Delivered, Signed and Dated in ELC Eldoret this 24 th day of September 2026 …………….………… C.N. Ondieki Judge In the presence of: Advocate for the Plaintiffs: Mr. Esikuri Advocate for the 1st, 3rd and 4th Defendants: Mr. Kibii Advocate for the 2nd Defendant: Mr. Chemweno 5th Defendant: Never entered appearance and never formally participated Court Assistants: Ms. Chepkoech & Ms. Juma Page 8 of 8

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