High Court 6678 of 2026

said agreement differs materially from what the parties arrived at or failed to agree on in the mediation session and is thus inconsistent with the will and intent of the parties. The applicant further stated that the parties attended the first and only session with the mediator on 24th May, 2024 and at the end of the mediation session the mediator was not ready with the agreement. Consequently, she was requested to sign a blank page since she was travelling; and the mediator undertook to share the written agreement with her for confirmation and approval before filing. 3. The applicant deposed that, contrary to that arrangement, the mediator went ahead and filed the agreement without giving her the opportunity of confirming the contents. She added that she was not given a chance to peruse through the agreement before it was presented in court for adoption, thereby infringing on her right of access to justice and fair hearing. She added that she interacted with the said agreement for the first time after its adoption in court and that to her dismay the adopted agreement did not capture the proceedings at the mediation session or the final agreement between the parties. 4. In particular, the applicant averred that she neither agreed to vacate her home without recompense nor have the deceased's property divided equally between the first wife and herself as captured in the Mediation Settlement Agreement. The applicant deposed that she is greatly prejudiced by the Order adopting the Mediation Settlement Agreement as the same does not reflect her views. She therefore posited that the 2nd house stands to suffer immense prejudice unless the orders sought are granted. 5. The application was opposed by the applicant’s co-administrator, Sarah Atieno Odhiambo. She relied on her affidavit sworn on 18th March 2025 in which she averred that, as joint administrators with the applicant, they voluntarily agreed to subject themselves to mediation; and that they ultimately signed a Mediation Settlement Agreement on the 24th May 2024 which was adopted by the Court on the 23rd September 2024. It was therefore the assertion of the respondent that, contrary to what the applicant alleged in paragraphs 3 and 4 of her Supporting Affidavit, the Mediation Settlement Agreement was ready at the end of the session and the mediator read over each of the resolutions to the parties. It was further averred by the respondent that the applicant was the first person to confirm and sign the Mediation Settlement Agreement. 6. The respondent further stated that the mediator not only read the Mediation Settlement Agreement point by point for them to confirm, but also gave them an opportunity to go through the document before appending their signatures thereto. She therefore posited that the applicant was fully aware of the contents of the Mediation Settlement Agreement, to which she appended her signature in confirmation. She added that the Mediation Settlement Agreement is yet to be executed; and therefore the applicant stands to suffer no prejudice if the orders sought by her are declined as she is one of the beneficiaries of the estate and will inherit part of the properties comprising the estate. 7. In the premises, the respondent urged the Court to dismiss the application dated 29th January 2025 contending that the applicant had failed to present proper grounds to warrant the setting aside the order of 23rd September 2024. She instead prayed that the parties be allowed to proceed and distribute the subject estate in accordance with the Mediation Settlement Agreement dated 24th May 2024 to bring this matter to closure. 8. The application was canvassed by way of written submissions, pursuant to the directions given herein on 25th February 2025. She reiterated the factual basis of her application and proposed for determination the question whether the Mediation Settlement Agreement should be set aside. She relied on Rule 39(3) of the Civil Procedure (Court Annexed Mediation) Rules, 2022 (hereinafter, “the Mediation Rules) and the case of Ondu Substituted by Mathew Obunqa Okore v Ondu Substituted by Monica Muqoya & 4 others (Environment & Land Case 21 of 2021) [20231 KEELC 16908 (KLR) (25 April 2023) (Ruling) and In re Estate of the late Adam Chebelieny Kibosia (Deceased) [2021] https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6678/eng@2026-04-24 2

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eKLR and submitted that she duly established valid grounds to warrant the setting aside of the Order dated 23rd September 2024. 9. The applicant also placed reliance on Articles 47, 48, and 50 of the Constitution which guarantee the right to fair administrative action, access to justice, and to have any dispute decided in a fair and public hearing before a court by an independent and impartial tribunal or body. On the authority of Kamilinchui & 5 others v Kimbui & another (Miscellaneous Application E007 of 2023) [2024] KEELC 53 (KLR) (17 January 2024) (Ruling) the applicant urged the Court encourage parties to pursue a path that brings unity and harmony in the family pursuant to Article 159(2)(d) of the Constitution. It was therefore her submission that it is in the interest of justice and the overriding objectives of law that the she be accorded a chance to ventilate her case by setting aside the order endorsing the agreement. 10. On her part, the respondent reiterated her stance that the applicant actively participated in the mediation discussions and duly appended her signature to the Mediation Settlement Agreement after confirming the contents thereof. She also urged the Court to note that no objection was raised by the applicant during or after the mediation session; and that it was not until 29th January 2025, a period of about 4 months, that the application for the first time indicated her dissatisfaction with the Mediation Settlement Agreement. According to the respondent, the instant application is an afterthought, and is merely intended to delay the final distribution of the deceased’s estate. 11. The respondent made reference to Rule 39 of the Mediation Rules and submitted that it only provides for the setting aside of an order or decree arising out of a Mediation Settlement Agreement but not the agreement itself. She further submitted that the signed Mediation Settlement Agreement amounts to a valid consent and its adoption as the judgment of the Court means that it can only be set aside on grounds which would justify the setting aside of a contract. She relied on Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd, Nairobi Civil Appeal No 276 of 1997 and Brooke Bond Liebig vs Mallya (1975) EA 266 to augment her submissions and urged the Court to find that no justification had been shown by the applicant why the Order of 23rd September 2024 should be set aside. 12. The respondent also relied on the following decisions to shore up her arguments that the grounds for setting aside the Order made herein on 23rd September 2024 were not proved by the applicant: (a) In re Estate of Leonard Walter Oselu Nyalik (Deceased) (Probate & Administration 70 of 2011) 120221 KEHC 15484 (KLR) (17 November 2022) (b) NKM v SMM & another [2019] KEHC 10316 (KLR) (c) In re Estate of Malome Origa (Deceased) (Succession Cause 777 of 2012) [2023] KEHC 22663 (KLR) (29 September 2023) (Judgment) (d) In re Estate of the late Adam Chebelieny Kibosia (Deceased) [2021] KEHC 4645 (KLR) 13. She consequently prayed for the dismissal of the application. 14. I have given careful consideration to the application, its Supporting Affidavit and the response thereto by the respondent. I have similarly given due consideration to the written submissions filed by learned counsel for the parties and the authorities relied on by them. 15. First and foremost, it cannot be over-emphasized that mediation is one of the alternative dispute resolution mechanisms provided for in Article 159(2)(c) of the Constitution. By its very nature, the process is party driven and therefore expected to yield a final amicable outcome for the parties concerned. It was not intended therefore that the settlement agreements yielded by the mediation https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6678/eng@2026-04-24 3

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process be appealed or set aside. For this very reason, Section 59B (4) and (5) of the Civil Procedure Act states: 16. 17. “ (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). That being the case, Rule 39 of the Civil Procedure (Court Annexed Mediation) Rules, 2022, provides that: (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. (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; (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. In the light of the above provision, the first question to pose is whether the applicant applied for and obtained leave of the Court before filing the instant application. From a perusal of the court record, there is no indication that the applicant complied with the above provision, which provision is peremptory in terms. It follows then that the application is premature. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6678/eng@2026-04-24 4

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18. 19. I find succor in the decision of Hon. Aburili, J. in Mbaja v Ouko & 5 others (Succession Cause 2 of 2009) [2023] KEHC 25636 (KLR) (20 November 2023) (Ruling) that: 47. In the instant case, there is no evidence that the applicant objectors herein first sought leave of court to apply for the setting aside of the Mediation Settlement Agreement or that they were granted such leave by this court. They simply filed an application for setting aside of the Mediation Settlement Agreement without first seeking and obtaining leave to apply. 48. without complying with the provisions of Section 39 (9) (1) and (2) of the Mediation Rules as above stated, this court would be devoid of any jurisdiction to entertain an application brought seeking to set aside the Mediation Settlement Agreement as is in the instant case. 49. The Mediation Settlement Agreement created a binding contractual arrangement and relationship amongst the parties thereto. More so, under Section 59B (4) and (5) of the Civil Procedure Act:“(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).” In the premises, the Notice of Motion dated 29th January 2025, being premature, is hereby struck out with no order as to costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24TH DAY OF APRIL 2026 …………………………… OLGA SEWE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6678/eng@2026-04-24 5

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