Mapesa v Malala (Civil Appeal E109 of 2023) [2026] KEHC 7133 (KLR) (14 May 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CIVIL APPEAL NO. E109 OF 2023** **HUMPHREY NYONGESA MAPESA ……………………………………………… APPELLANT** **VERSUS** **JOSEPH MALALA …………………………………..…………………………. RESPONDENT** ***(Being an appeal from the Ruling of Honourable J.R. NDURURI (PM) in Kakamega CMCC No.135 of 2018 delivered on 15th December 2022)*** **JUDGEMENT** 1. This is an appeal arising from the Ruling of the learned Principal Magistrate Hon. J.R. Ndururi delivered on 15th December 2022, where the main dispute arose from the Mediation Settlement Agreement dated 13th December 2018. 2. The Appellant herein had filed a Notice of Motion Application dated 10th March 2021, where he sought orders that the Mediation Settlement Agreement dated 13th December 2018 be set aside and or expunged from the court records and that the suit proceed for a full hearing. 3. According to the Appellant, the Respondent had concealed material information from the Mediator, being that the land comprised in L.R. No. North Wanga/Indangalasia/883, which was the subject matter of the agreement, had an encumbrance, being a caution. Additionally, L.R. No. North Wanga/Ingalasia/841 was registered to a third party, and both properties could not be sold and the proceeds thereof shared among the parties as agreed. On account of the anomaly in the two titles, the Appellant claimed that the Respondent's non-disclosure of the information invalidated the mediation agreement and that it ought to be set aside. 4. In his reply dated 21st May 2021, the Respondent opposed the application, contending that the mediation process was entered into voluntarily and amicably by both parties. He denied placing a caution on the land, stating that it was registered in the Appellant’s name and that, when the Mediation Agreement was entered into on 13th December 2018, the Caution was already in place and within the Appellant's full knowledge. 5. He averred that the Appellant initially owned land parcel L.R. No. North Wanga/Idangalasia/841 and had transferred the land to James Watako Wamukoya in 2018, a fact he was well aware of when he offered it up for sale during the mediation process. 6. On 15th December 2022, Hon. J.R. Ndururi delivered a ruling in which he held as follows:- 7. *That part of the mediation settlement agreement dated 13th December 2018 regarding the sale of land Parcel No. North/ Wanga/Indangalasia/841 and part of Land Parcel No. North Wanga/Indangalasia/883 was obtained through concealment of material facts and, therefore, fraudulent misrepresentation of facts on the part of the respondent. That part is hereby set aside.* 8. *That the part of the said mediation settlement agreement with respect to the amount payable to the respondent’s claim in the suit was reached with the full knowledge and consent of both parties, and is therefore enforceable. Thus, the parties and this court are bound by the terms of that part of the agreement.* 9. *That the costs of the application will go to the applicant.* 10. The Appellant, being aggrieved and dissatisfied with the ruling of the trial magistrate, filed a memorandum of appeal dated 12/07/2023 and listed the following grounds:- 11. *The learned trial magistrate erred in law and fact when she (sic) separated the mediation settlement agreement into two and upheld one part as being vitiated, while upholding the other, and hence arrived at a wrong conclusion.* 12. *The learned trial magistrate erred in law and fact when she (sic) failed to appreciate that the mediation settlement agreement with respect to the amount payable was premised upon the parcel of land fronted for its enforceability, hence the two were inseparable and therefore arrived at a wrong conclusion.* 13. *The learned trial magistrate erred in law and fact when she (sic) failed to apply the principle of construction of an agreement by failing to appreciate that separation of the settlement of the mediation agreement from its enforceability was as good as coming up with a new agreement, which is making the court a party, and hence arrived at a wrong conclusion.* 14. *The trial magistrate erred in law and fact when she (sic) misdirected herself on the findings on a vitiated settlement by qualifying one part of the agreement while holding the other as vitiated, hence arrived at a wrong conclusion.* 15. The Appellant prays that the orders of the lower court be set aside and that they be substituted with the orders sought by the Appellant in the application dated 10th March 2023. 16. The appeal was canvassed by way of a written submissions. **Appellant’s Submissions** 1. In his submissions dated 21st November 2024, the Appellant contends that there were two agreements, the first being on the construction of classes, and the second being a consent agreement which emanated from the mediation. 2. He affirmed that, regarding the first agreement, there was no dispute that the Respondent owed him Kshs. 3,000,000/= that had not been paid to date, and that the issue is with the consent agreement dated 14/09/2023, where the concern was with the implementation of the order. 3. He submitted that the two land parcels L.R. No. Wanga/ Indangalasia/883 and .R. No. Wanga/ Indangalasia/841, which were to be sold to offset the balance to the Respondent, had a Caution, while L.R. No. N/Wanga/Indangalasia/841 was not in the name of the Respondent but in the name of a different person not party to the proceedings. He averred that he was ignorant of the status of the two titles during the mediation. 4. He further averred that there was misrepresentation of facts by the Respondent and that implementation of the payment of the fees cannot be done due to the issue of the caution. He alleged frustration in the enforcement of the agreement, as the subject matter agreed by the parties cannot be enforced. 5. The Respondent filed submissions dated 2nd April 2025. He raised two issues for determination: Whether the mediation settlement dated 13th December 2018 should be set aside, and who is entitled to costs. 6. He submitted that it was the Appellant who had proposed that the parties proceed with mediation, and an agreement was entered into voluntarily and amicably. He averred that the land parcel L.R. No. North Wanga/Indangalasia/883 is registered in the name of the Appellant, and the caution in favour of a 3rd party was registered in 2013, long before the Appellant offered it for sale in 2019. He denied the assertion that he tricked the Appellant and the mediator, as he illiterate, whereas they are literate. 7. He contended that the Appellant has never performed the terms and conditions of the agreement dated 21/5/2012. He asserted that the Appellant had not given any reason to set aside the mediation agreement. 8. He argued in support of the trial magistrate's finding in setting aside part of the mediation agreement, as the claim that was raised in respect to the caution registered by Mwanaisha Apiyo Masanga over land parcel L.R. No. North Wanga/Idangalasia/883 arose from a land dispute between the said Mwanaisha as the plaintiff and himself as the second defendant, and that the title of the property was eventually cancelled. He further claimed that the Appellant had been the registered owner of the land comprised in parcel number L.R. No. North Wanga/Idangalasia/841, which he transferred to a third party in 2018. 9. The Respondent contended that the Appellant’s intention is to frustrate the consent agreement, which he acknowledged came from the debt the Appellant owed him, and in respect of which part of the Settlement Agreement addressed. He submitted that the other portion of the agreement concerning the selling of the two land parcels and sharing the proceeds was unenforceable due to the encumbrances on the first title. 10. He submitted that the Appellant’s intention was to frustrate the consent as he knew that the other parcel of land was already transferred to a 3rd party in 2018. 11. The Respondent further submitted that a Mediation Settlement Agreement entered by way of consent between two parties cannot be set aside unless there was evidence that there were vitiating factors proven to have influenced the agreement, quoting Rule 5 and 39 of the Court Annexed Mediation rules. 12. In his opinion, the Appellant had not met any grounds for setting aside the Mediation Agreement since he claimed that the Respondent had concealed from the Mediator the existence of the encumbrance by way of a caution registered by the 3rd party regarding the land, hence he was the one who had fraudulently tried to frustrate the agreement. 13. The Respondent urged that the appeal be dismissed with costs and the ruling on the application to set aside the Mediation Settlement Agreement be upheld. **Analysis and Determination** 1. As this is the first appeal, this court is enjoined by the provisions of Section 78 of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) to evaluate and examine the trial court’s record and the evidence presented before it to arrive at its own conclusion. 2. This principle is well settled in the case of ***Selle v Associated Motor*** ***Boat Co. Ltd [1968] EA 123,*** where the Court of Appeal outlined the duties of a first appellate court as follows:- ***“[An appellate court] is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...”*** 1. I have carefully considered the Record of Appeal, the impugned ruling, the rival submissions by counsel, and the Authorities cited. In my considered view, the following issues arise for determination: - 2. *Whether the learned trial court erred in law and fact in partially setting aside the mediation settlement agreement dated 13th December 2018.* *b) Whether the mediation settlement agreement, after the decision of the trial magistrate, was severable and capable of being partially enforced.* 1. Before I delve into the substance of the appeal, I propose to deal with the legal position regarding mediation settlement agreements and consent judgments. As has been stated repeatedly, a mediation settlement agreement adopted by the court assumes the character and force of a consent judgment. 2. I note that the contentious Mediation Settlement Agreement was dated 13th December 2018 was entered into before the Civil Procedure (Court-Annexed Mediation) Rules, 2022 came into force in September 2022. It was then adopted as an order of the court on 3rd January 2019. The said Rules were therefore not applicable to the Appellant’s application dated 10th March 2021 which ought to have been brought under Order 45 Rule 1 of the Civil Procedure Rules. Nonetheless, since the Agreement was adopted as a consent Judgement, it could only be set aside under the grounds upon which a consent judgement can be set aside. It is instructive to note that by dint of Rules 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, the grounds for setting aside a Mediation Settlement Agreement are largely similar to the grounds upon which a consent Judgement can be set aside. 3. The Court of Appeal in ***Flora N. Wasike v. Destimo Wamboko [1988] eKLR*** held that:- ***“It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract, for example fraud, mistake or misrepresentation.”*** 1. In ***Board of Trustees, National Social Security Fund v. Micheal Mwalo [2015] eKLR***, the Court stated:- **“*A court of law will not lightly set aside a consent judgment... A consent judgment has contractual effect and can only be set aside on grounds which would justify setting aside a contract.”*** 1. Once parties enter into a consent agreement through a mediation settlement, which is concluded and adopted by the court, it acquires the force of a consent judgment. Such agreements are contractual in nature and are not lightly set aside. 2. I have gone through the Mediation Settlement Agreement dated 13/12/2018 entered into by the parties Joseph Malala Sakwa and Humphrey Nyongesa, and it reads as follows:- 3. *The defendant, Mr. Humphrey Nyongesa, shall proceed to immediately sell land LR North Wanga/ Indangalasia/883 and a portion of land about 0.25 acres of LR North Wanga/ Indangalasia/841, consisting of 3 buildings and 1 incomplete building (work in progress).* 4. *The total area onto which the project in dispute is built is about 2.5 acres.* 5. *The sale price shall be a minimum (reserve price) of Kenya shillings four million five hundred thousand (Kshs. 4.5 million) only, and the total proceeds shall be shared at a ratio of 1:3 in favour of the plaintiff, Mr. Joseph Malava Sakwa and at a minimum of Kenya shillings three million (Kshs. 3 million) only for Mr. Joseph Malala Sakwa and at a minimum of Kenya Shilling one million five hundred thousand (Kshs. 1.5 million) only for Mr. Humphrey Nyongesa* 6. *The sale of the land shall be in an open market sale by a willing buyer- willing seller in liaison with Mr. Joseph Malala Sakwa, and shall be paid to Account Name: Joseph Malala Sakwa, Co-operative Bank, Mumias Branch, Account No. 01109234691500.* 7. The Appellant’s contention with the learned trial Magistrate’s Ruling dated 17th December 2022 was that Hon. Ndururi severed the Mediation Settlement Agreement into two parts, being; 8. the settlement of the debt owed by the Appellant to the Respondent, and 9. the mode of payment through the sale of specific parcels of land, L.R. Nos. North/Wanga/Indangalasia/883 and 841, and sharing of proceeds between the parties in the ratio of 1:3 in favour of the Respondent, getting the larger portion. 10. He argued that the Mediation Agreement was indivisible and that once the trial court discovered that there was fraud, misrepresentation, and concealment of crucial information regarding the ownership of the land, then the entire Agreement should fail and the parties should be subjected to a court suit. 11. The Respondent opposed the argument by the Appellant and prays that this court uphold the finding of the trial court, averring that the indebtedness by the Appellant was already admitted as a fact, so was the mode of settlement, which was consented to in the mediation agreement. 12. Regarding the claim that there was any material non-disclosure or misrepresentation concerning the specific parcels of land, L.R. Nos. North/Wanga/Indangalasia/883 and 841, upon perusal of the court record, the Certificate of the Official Search as at 24/4/2018 indicates that, as at 23/3/2006, the Appellant was the registered proprietor of all that parcel of land comprised in L.R. No. North Wanga/Indangalasia/883. However, a Caution was placed on 21/09/2012 in favour of Mwanaisha Apio Masanga, and a restriction was registered on 3/9/2013, prohibiting any dealing in the land, following an order in Kakamega HCCC No 113 of 2012. The second parcel of land, L.R. No. North/Wanga/Indangalasia/ 841, was owned by James Watako Wamukoya as of 9/2/2018. 13. The critical question is whether the vitiating factors above would affect the whole mediation agreement or only the proposed mode of settlement. 14. I have analyzed both parties’ arguments as well as the trial court’s ruling on the issue, and in my respectful view, the trial Magistrate did address the issue of the substantive liability on the lands as well as the proposed mechanism for settlement of the dispute. The lower court records clearly demonstrate that there was no dispute between the parties as to the existence of a debt owed by the Appellant to the Respondent. The same has been conceded by the Appellant, who admitted that the Respondent had raised funds for the construction of the classrooms on his behalf as the school's Director. 15. The main concern is the manner in which the debt would be offset, as the parcels of land that were to be disposed of as agreed between the parties are not available for disposal due to existing encumbrances. 16. The principle is that courts do not generally rewrite contracts that have been freely entered into by two competent parties with no coercion or undue influence. 17. The Court of Appeal in ***National Bank of Kenya Ltd vs Pipeplastic Samkolit (k) ltd & another (2001) KECA 362*** overturned a decision by the High Court that varied the interest terms, stating the courts cannot substitute the agreed terms with their own terms. It stated as follows:- ***”A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract unless coercion, fraud, or undue influence are pleaded and proved.”*** 1. The same principle was cited in the High Court decision in ***Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd [2017] eKLR,*** which equally stated that a court cannot rewrite a contract between the parties. 2. Whilst still on the enforceability of the contract, the Appellant contends that the trial court cannot sever the contract and only allow for a partial enforcement, and that the whole contract should be voided and the parties should opt to settle the matter in court. 3. The doctrine of severability is a well-recognized principle under the law of contract that allows courts to preserve the valid parts of a contract while striking out clauses that are either illegal or invalid, as long as the part or section that offends the contract does not destroy the essential purpose of the contractual agreement. 4. Justice AC Mrima, while sitting at the High Court in Migori, dealt with the issue of severability in the case of ***Calvince Omondi Origa v South Nyanza Sugar Co. Ltd [2020] eKLR*,** stating that:- ***”I must acknowledge the effort by the trial court in dealing with the doctrine of severability. It is a sound doctrine in contract law and has its applicability in appropriate instances…. The starting point when dealing with the doctrine of severability is the contract itself. If the contract provides a severability clause, then that is the binding position.”*** 1. The Court quoted with approval from the Court of Appeal in ***Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 Others (2017) eKLR*** and held as follows: ***“Whether or not a contract is severable depends on the terms and conditions of the contract. ... If the contract makes provision for severability then it is severable; however, if the contract has no provision for severability, a court will determine if the contract is indivisible or severable. Such determination ... will take into account, amongst other things, the nature of goods, services or works to be performed.”*** 1. In the present case, the claim that the Appellant owed the Respondent a substantial amount of money was not disputed, nor was the fact that the parcels of land that were the proposed mode for the settlement of the debt were unavailable for disposal. 2. In my view, there was no error when the trial court concluded that the portion that related to the sale and sharing of the proceeds from the parcels of land was tainted by concealment of material facts that rendered the implementation impossible. The trial court, however, was correct in acknowledging that the Respondent’s claim remained valid and enforceable nonetheless. 3. The Appellant's contention that the agreement was indivisible and incapable of severance, in my view, is not valid as the mediation settlement was two-fold, the first being on the recognition and the settlement of the Respondent’s monetary claim, while the second part concerned the disposal of the parcels of land to facilitate the payment owed. 4. In my understanding, the second limb of the agreement merely provided for the mechanism through which the debt, which was rightfully admitted, would be satisfied, and the failure or invalidity of the stated mechanism did not in itself extinguish the entire obligation. 5. The Appellant cannot on one side acknowledge that there existed a contract and a debt owing and on the other hand seek to escape from his obligations by relying on the difficulties surrounding the proposed mode of settlement which he himself was aware of considering land parcel L.R. No. Wanga/Indangalasia/883 had a caution registered against it in 2012 while he was still the owner hence he cannot claim ignorance of the caution. He did not also controvert the Respondent’s averment that he is the one who sold land parcel L.R. No. Wanga/Indangalasia/841 to James Wamukoya. 6. What the trial court did was exercise caution and strike a balance between preserving the sanctity of the consensual settlement while de-linking it from the none-enforceable portion. 7. I am not in agreement with the Appellant, who claimed that the trial magistrate rewrote the parties' contract when he partially enforced the mediation agreement. The trial court merely excised the enforceable party of the contract while preserving the valid and uncontestable part of the agreement. That, in my view, did not constitute the creation of a new contract between the parties. 8. The Appellant’s move to seek the setting aside of the Mediation Settlement Agreement was made more than two years after it had been adopted as an order of the court. This was only an inordinately long time but was not made in good faith in view of the circumstances of the case. The Appellant was guilty of approbation and reprobation and is clearly intent on delaying the finalization of this case. 9. From the records, the Respondent caused land parcel L.R. No. Wanga/Indangalasia/883 to be advertised for sale by public auction on 4th May 2023 vide a newspaper advertisement published by M/s. Armok Auctioneers. However, the Appellant filed an application to stay the intended sale on the grounds that intended sale was irregular as the Mediation Settlement Agreement, could not be practically implemented due to the existing encumbrances on the land. One would have expected the Appellant to be actively seeking a removal of the caution to facilitate the sale of the property by way of private treaty and having failed to do so, and in absence of any objection by the cautioner, I find that the Appellant is guilty of material non-disclosure. 10. This court therefore does not find that there was any misdirection by the learned trial magistrate or that he acted on the wrong principles or misapprehended the law or arrived at an erroneous conclusion that would warrant any interference by this court. 11. Consequently, I find that this appeal lacks merit and it is hereby dismissed. The upshot is that the order dated 15th December 2022 is affirmed. 12. The costs of this appeal shall be borne by the Appellant. Dated, signed, and delivered at Kakamega, this 14th day of May 2026. **A. C. BETT** **JUDGE** **In the presence of:** Mr. Simiyu for the Appellant No appearance for the Respondent Court Assistant: Polycap