https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11561

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESSION CAUSE NO. E010 OF 2024** **IN THE MATTER OF THE ESTATE OF DINAH MWOMBE Alias DINAH CHEBUKWA MWOMBE (DECEASED)** **KENNEDY MWOMBE KITERESI ..................................... 1ST PETITIONER/RESPONDENT** **GRACE NASHIMIYU MAMATI .................................... 2ND PETITIONER/RESPONDENT** **AGNES NELIMA WAFULA ........................................... 3RD PETITIONER/RESPONDENT** **JANE NANZALA MWOMBE ........................................ 4TH PETITIONER/RESPONDENT** **VERSUS** **JANET MAKHAKHA NAFULA .......................................... 1ST OBJECTOR/APPLICANT JUMA MURUMBA MWOMBE ......................................... 2ND OBJECTOR/APPLICANT ELIAKIM ADONGO MURUMBA ..................................... 3RD OBJECTOR/APPLICANT** **JOASH MULIEVI MURUMBA ........................................... 4TH OBJECTOR/APPLICANT** **RULING** 1. Before me is an application dated 9/3/2026 brought pursuant to Rule 39, Court Annexed Mediation Rules, in which the 1st Objector seeks to set aside the Mediation Settlement Agreement dated 20/11/2024 and adopted by the Court on 11/2/2026 and for an order that the matter be listed for hearing of the Objector’s case. 2. The application is premised on the grounds that:- 3. *There was misconduct, fraud and/or fundamental mistake by the Mediator that goes to the core of the matter.* 4. *There was collusion and/or misrepresentation by the Petitioners and the “elders” who were strangers to the proceedings.* 5. *There was a fundamental mistake by the parties to the mediation as to the existence and/or state of some of the assets of the deceased that materially affected the parties’ decision to enter into the settlement and which has rendered the mediation agreement unfair and inequitable.* 6. *The agreement is invalid and incapable of enforcement under Kenyan law.* 7. The application is supported by an affidavit sworn by the 1st Objector, who deposes that third parties intruded into the mediation proceedings and that there are inherent discrepancies in the shares in Eldoret Plot No. 2/165 and the Malava Township plots. It is the Applicant’s averment that she was not accorded ample time to comprehend the Mediator’s decision and that she was merely directed to append her signature to it, all this in the absence of her Counsel, who had sought an adjournment in vain. 8. Additionally, by an application dated 13/2/2026, the 2nd, 3rd and 4th Objectors sought leave to set aside the mediation settlement agreement and, upon leave being granted, that the Court do set aside the mediation settlement agreement, after which the matter be set down for hearing of the Objectors’ case. The grounds for the Objectors’ application were that the mediation agreement was obtained by means of fraud, collusion, and misrepresentation of material facts. 9. On 19/3/2026, the Court directed that the two applications be heard contemporaneously and the same be canvassed through written submissions. 10. All the parties have filed written submissions, which the Court has duly considered. 11. The issue that arises for determination is whether the Applicants in the two applications meet the threshold for setting aside the mediation settlement agreement. 12. Rule 39 (3) of the Civil Procedure (Court Annexed Mediation) Rules provides:- ***“(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.”*** 1. It is the 1st Objector’s submissions that the Mediator made a fundamental mistake in that he misconceived the scope of the mediation before him and proceeded to distribution, whereas the issue at hand was who should be appointed administrator. She contends that the decision by the Mediator to have the parties agree on the mode of distribution was premature and in violation of Section 71 of the Law of Succession Act. She contends that the Court-Annexed Mediation Rules were not promulgated with a view to substituting clear mandatory statutory provisions. 2. The matter was referred to court-annexed mediation at the instance of the parties after the Objectors had filed several objections to the issuance of a Grant of Letters of Administration intestate to the Petitioners. At the time, the court had not yet issued the Grant; hence, the purpose of the mediation proceedings was to determine which parties would be appointed as administrators. 3. The Law of Succession Act provides for a two-stage process in succession proceedings: the issuing of a Grant of representation, followed by the confirmation of the Grant and the distribution of the estate. At the stage before the Grant is issued, it is premature to determine the mode of distribution. To proceed to have the parties agree on the mode of distribution of the estate was therefore to act beyond the terms of reference because not all the persons listed as beneficiaries of the deceased were present during the mediation. 4. In the cause of **In re Estate of the late Mutai [2026] KEHC 8030 (KLR)**, Wananda J set aside a Mediation Settlement Agreement on account of the Mediator having gone beyond the scope of the issues before him. 5. Upon careful consideration of the application, I find that the Mediator made a fundamental mistake in determining the distribution of the estate, as this was premature. The Mediation Settlement Agreement was therefore a nullity and must be set aside. See **In re Estate of Stanley Mugambi M’muketha alias Stanley Mugambi Muketha (Deceased) [2024] KEHC 15390 (KLR)**. 6. Consequently, I find the two applications merited and allow the same and set aside the Mediation Settlement Agreement adopted by the Court on 11th February 2026. 7. This being a family matter, there are no orders as to costs. Dated, signed and delivered at Kakamega this 23rd day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** Mr. Mulama for the Objectors/Applicants Mr. Shaka for Petitioners/Respondents Court Assistant: Polycap