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

b) The plaintiff and their family be ordered to vacate the 2.5 acres of land known as Kakamega/Shambarere/1233 within sixty (60) days, failing which vacant possession be delivered forthwith. c) The Honourable court do issue any further orders as may be just and expedient in the circumstances. 2.The application is premised on the supporting affidavit sworn by Monica Mugoya Mugoya the 1 st defendant on 24th November 2025. The 1st applicant deponed that she is 95 years old and in the twilight of her life hence the urgency of this matter. That she is a widow with no other means of livelihood and sustenance apart from the suit property. 3.She further stated that the mediation agreement herein state that she was to get 1.5 acres of land within the same locality of Efuetere, and that the land would not be 15 Kms away. That the attempt to secure land in a different location is contrary to the terms and spirit of the mediation agreement. That as noted in the ruling of this court, the consent purported to vest supervisory role 2

page 2 of 8

over succession matters on this court, which jurisdiction the court does not have. That clause 4 of the mediation agreement was ambiguous. That to date, the plaintiff has failed to comply with the consent by refusing to purchase land within the parties’ locality. 4.It was her position that the plaintiff has sold off part of the land and is able to purchase land for the 1 st defendant as agreed, but has refused. That the plaintiff did not consult her in the purchase of land at Busotso/Ingotsi. That she is no longer interested in pursuing the mediation agreement. 5.The application was opposed. The respondent filed replying affidavit dated 3rd June 2026. He stated that the application was made in bad faith as parties referred the matter to mediation by consent. That the mediation agreement was entered into by agreement of all parties including their family members as the two families negotiated. That parties understood the terms of the agreement and voluntarily executed it. 3

page 3 of 8

6.Further that the mediation agreement was adopted as the decree of this court on 4th July 2022. That in compliance with the decree, the plaintiff obtained parcel No. Butsotso/Ingotse/4104 measuring 0.6 Ha registered in the names of his advocate in readiness for transfer to the estate of Pius Ondu. That on their part, the defendant was to start succession proceedings to transfer 2.5 acres of Kakamega/Shamberere/1233 to the plaintiff. 7.He maintained that the defendants failed to comply with the decree. That he therefore filed application dated 16 th June 2025 to compel the defendants to comply with the decree but that the application was dismissed for want of jurisdiction. That subsequently, he filed a citation against the defendants vide Kakamega Succession Cause No. 327 of 2025. 8.The plaintiff further argued that the 3rd defendant had filed a similar application for setting aside the mediation agreement vide application dated 29th December 2022 and that in the ruling dated 25th April 2023, the court dismissed the same. That this application is an abuse of the court process. 4

page 4 of 8

9.The plaintiff cited Rule 39 (1) of the Civil Procedure (Court Annexed Mediation Rules) No. 145 of 2022, which requires that a party who intends to seek to set aside a mediation agreement can only do so with leave of court. He maintained that no leave of court was obtained in this matter. 10.According to the plaintiff, Rule 39 (3) of the aforesaid Rules, sets out grounds for setting aside mediation agreement to include fraud, mistake, misrepresentation, collusion, misconduct, fundamental mistake, legal incapacity and sufficient cause which have not been demonstrated in this case. 11.Plaintiff filed submissions dated 13 th August 2026 which the court has considered. Analysis and determination 5

page 5 of 8

12.The court has carefully considered the application, response and submissions. The issues for determination are as follows; a) Whether the application dated 21st January 2026 is res judicata; b) Whether the application dated 21st January is incompetent for want of leave of court; and c) Whether the applicants have met the threshold for setting aside a mediation agreement. 13. On the question of res judicata, section 7 of the civil Procedure Act bars a court from trying an issue or a suit raising directly and substantively the same issue between the same parties as those in a suit which has already been determined on merit by a court of competent jurisdiction. 14.In the application dated 29th December 2022, the 3rd defendant sought leave to apply to set aside and review the mediation agreement. The application was heard on merit and the same was dismissed. While the previous application sought leave of court to apply to set aside the mediation agreement, the current application does not 6

page 6 of 8

seek leave to set aside the mediation agreement, but seeks orders to set aside a mediation agreement. Therefore, the issue in dispute now is different from the issue raised in the application dated 29 th December 2022, therefore, the instant application is not res judicata. 15.On the competence of the application herein, Rule 39 (1) of the Court Annexed Mediation Rules provides that an application to set aside mediation agreement can only be made with leave of court. 16.Rule 39 (1) of the Civil Procedure (Court-Annexed Mediation) Rules provide as follows; “39. Setting aside an order or decree arising out of a settlement agreement (1) No application for setting aside of an order or decree arising from a mediation settlement agreement shall be filed except with the leave of court.” 17.In the instant case, no leave of court was sought and or obtained by the applicant before filing the current application. I therefore, find and hold that the application 7

page 7 of 8

dated 21st January 2026 is incurably incompetent and the same is hereby struck out with costs. 18.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN MICROSOFT COURT/VIRTUALLY TEAMS VIDEO THROUGH CONFERENCING PLATFORM THIS 23RD DAY OF SEPTEMBER, 2026 A. NYUKURI JUDGE In the presence of; Mr. Ogola holding brief Ms Ndeda for the Plaintiff No appearance for the defendants Court Assistant: Delphine 8

page 8 of 8