High Court 16412 of 2025

administrator had been inadvertently left out during the Mediation and he is apprehensive that the sole administrator would not be fair to him. 4. The application is opposed by the Administrator/Respondent in her affidavit dated 12th May 2025. She deposed that the Mediator had explained to all parties at the beginning that the mediation agreement would be binding, and that the applicant’s Counsel was present all through. 5. She contended that before signing the agreement, the applicant had a chance to carry out background checks on the properties, and that at no point during mediation, had he requested for valuation to be carried out. 6. She further deposed that the grant emanated from the agreement. 7. She explained that the asset that the applicant seeks had also not been handed to her by the deceased’s brothers and that she was pursuing a Court battle over them. 8. On the issue of being an Administrator, she deposed that the applicant abandoned the claim during mediation after assets were allocated to him. She explained that she had surrendered her claim to the rest of the properties for the children of the deceased to benefit equally. 9. She deposed that the deceased’s estate is a beneficiary in two other estates whose succession proceedings are underway, where the applicant stands to gain substantially. 10. The Administrator/Respondent also filed a Preliminary Objection on the grounds that the Application offends Rule 36 (3) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022 and that it is vexatious and abuse of the Court process. Determination 11. 12. Having carefully considered the application, the supporting and opposing affidavits, the record of these proceedings this court finds the following issues to be for determination; I. Whether the Preliminary Objection can be upheld; II. Whether the Applicant has established sufficient basis for the review of the Further Mediation Agreement. The Preliminary Objection is drawn from Rule 36(3) of the Civil Procedure (Court Annexed Mediation) Rules 2022 which provide that: “ No appeal shall lie against a decree or order of the Court arising from a settlement agreement.” 13. The Applicant refutes that the application seeks to appeal the Court order emanating from the partial mediation agreement. The Respondent argues that the application seeks to alter the Partial Grant which emanated from the mediation agreement and as such, the application amounts to an appeal. My perusal of the application does not disclose an appeal but a variation. In the upshot, the Preliminary Objection is dismissed. 14. The application seeks that the Court set aside some of the covenants set out in the Mediation agreement and replace it a re-allocation of assets and appoint a co-administrator. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16412/eng@2025-09-30 2

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15. Section 39 of the Rules further provide as follows with regards to setting aside of Mediation agreements: “ 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. (2) An application for leave under sub-rule (1) shall be supported by an affidavit detailing the grounds upon which the applicant intends to rely in setting aside the order or decree. (3) The following shall constitute the grounds upon which an application to set aside an order or decree arising from a mediation settlement agreement— (a) misconduct, fraud, or a fundamental mistake by the mediator as relates to the mediation proceedings that goes to the core of the matter: Provided that the misconduct, fraud or mistake should not have been known by the applying party at the time of execution of the settlement agreement and should be one which affected the process and outcome of the mediation in such a way that it would be unfair and inequitable to enforce it in its form; 16. (b) 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; (c) 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; (d) 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 (e) where the settlement agreement is invalid under Kenyan or international law, or is or has become incapable of enforcement under Kenyan law. (4) At the hearing of an application to set aside an order or decree, no party shall, without leave of court, be allowed to canvass any other ground in support of the application other than the grounds specified in sub-rule (3). (5) The court shall hear and determine an application under this on priority basis within thirty days after filing. I note that parties were sent to mediation upon an application by the same applicant to be recognized as a beneficiary and made an administrator. While the two mediation agreements dealt with the issue https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16412/eng@2025-09-30 3

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of who is a beneficiary and which asset the beneficiaries would get, the agreements do not mention the issue of the applicant being made a joint administrator. 17. However, this Court takes note that, the leave of this Court was not sought before the filing of the instant application. 18. Secondly, the grounds upon which the application has been brought are not any of the ones allowed under the rules. 19. As such, I find the Application is improperly before this Court and the prayers 1 as sought cannot be granted. 20. However, I note that the prayer to be joined as co-administrator was an issue before the Mediator, and which issue, the process failed to address. Neither of the two mediation agreements stipulate that the Applicant abandoned the issue once the other issues were settled. It is believable that the issue was inadvertently left out. Further, the mediation agreement dated 9th March 2023 left the application filed on 29th December to be determined by the Court. 21. I find the deposition by the Applicant that he is apprehensive of not being treated fairly by the sole administrator to be reasonable as he is not biologically related to her. It is not wild or far-fetched. 22. In the upshot, I allow prayer No.2, for the Applicant to be made a co-Administrator of the Estate. The Respondent has not demonstrated any prejudice that will be suffered if the same is allowed. Disposition 23. Having taken all the above into consideration this Court makes the following determination: 1. That the Application dated 12th November 2024 is partially successful. 2. That the prayer for joining the Applicant as co-administrator is allowed as prayed. 3. Parties shall bear their own costs. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF SEPTEMBER, 2025. E.K OGOLLA JUDGE In the presence of: Mr. Osoro……………………………….………..…………. for the Applicant Ms Ndirangu…….………………... for the Administrator/Respondent Gisiele Mohamed…………………………….……………… Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16412/eng@2025-09-30 4

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