[2023] KEHC 25452 (KLR)

In re Estate Late Jacob Kibiwott Arusei (Succession Cause 312 of 2012) [2023] KEHC 25452 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25452 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 312 of 2012

JRA Wananda, J

November 17, 2023

Between

Esther Arusei

Petitioner

and

Dorcas Cherono Biwott

Objector

and

Perez Arusei

Protestor

Ruling

1. The issue herein is whether the Court should adopt a Court Annexed Mediation Settlement Agreement in full or whether the same should be set aside in its entirety or whether it should only be partially adopted. While the rest of the parties, including the Petitioner and the Objector, want the Agreement to be adopted in full, the Protester (Petitioner’s daughter) is opposing a portion thereof.

2. The background of the matter is that the deceased, Jacob Kibiwott Arusei died intestate on 23 01 1993 at the age of 67 years. Upon his death, on 2 10 2012 the Petitioner, as the widow, applied for a grant of Letters of Administration. She listed 10 survivors (among them the Protester, her daughter). The Grant was then issued to her on 13 05 2014.

3. However, on 16 02 2017, the Objector, claiming as a daughter-in-law to the deceased, filed a challenge claiming her late husband’s share and challenging her omission from the list of survivors. After protracted litigation, on 16 09 2022, the parties agreed to refer the dispute to Court Annexed Mediation. It is agreed that after Mediation sessions, the Mediator prepared a Mediation Agreement dated 4 11 2022 and forwarded it to this Court for adoption.

4. I have not managed to locate the Agreement in the Court file but the parties are in unanimity that the same is in existence. According to the parties, the Agreement provided that the mode of distribution of all the 5 properties comprising the estate had been agreed upon, that among the 5 properties, out of the one known as Nandi Kipkaren Salient 275 the Petitioner would get 16 acres and the Objector (Petitioner’s daughter) would get 4 acres. The remaining portion of this specific property would be shared amongst 7 other people.

5. Now before Court for determination is the Affidavit of Protest filed on 2 12 2022 by the Protester. She is represented herein by Messrs Rioba Omboto & Co. Advocates.

6. In the Affidavit, the Protester deponed that during the Mediation sittings, there was an agreement that out of the said property L.R. Nandi Kipkaren Salient 275, she would be given 10 acres since she was operating a project (milling factory) which requires over 10 acres, that on 4 11 2022 when she was not in attendance, the Mediator recorded a Mediation Agreement without her participation on the mode of distribution in which she was given 4 acres contrary to 10 acres as earlier agreed and that immediately and upon her instructions, her Advocates issued a protest letter to the Petitioner. She attached a copy of the Mediation Agreement but the same is not very legible.

Response to the Protest 7. The Protest is opposed vide the Replying Affidavit sworn by the Petitioner, and filed on 10 02 2023 through Messrs Kipkorir Cheruiyot & Kigen Advocates. She confirmed that the Protester is her daughter, pursuant to the Application filed by the Objector (her daughter-in-law) challenging her exclusion as a survivor, by the consent recorded on 16 09 2022 the parties consented to refer the matter to Mediation, on 4 11 2022 the parties attended the Mediation session, all the beneficiaries were present except the Protester who chose not to attend despite having been duly informed and notified, she lives together with the Protester and while the other parties were going for the session the Protester remained at home, at the Mediation session they agreed on the mode of distribution, since there was no objection from any person the Mediator recorded the Agreement, the Protester ought to have attended the session if indeed she had any objections, the Cause has been in Court for long hence the litigation ought to come to an end, and that she is elderly and wishes to see the conclusion of this matter.

Hearing of the Application 8. The matter was canvassed by way of written Submissions. Pursuant to directions given, the both the Protester and the Petitioner filed their Submissions on 27 02 2023. As aforesaid, the Objector, being satisfied with the Mediation Agreement, did not file any Submissions and neither did the rest of the other beneficiaries.

Protestor’s Submissions 9. Counsel for the Objector submitted that the non-attendance by the Protester was neither deliberate nor intentional, she never willingly declined or failed to attend as alleged by the Petitioner, the Mediation procedure and principles is that during Mediation the Mediator would have reached the Protester personally before forwarding the same to the Judge for adoption, in a Mediation Agreement, “meeting of minds” arises upon execution of the Agreement, only when one signs does reason arise to believe that the party has read and understood the terms thereof, the Petitioner admits that the Agreement was signed in the absence of the Protester which clearly indicates that there was no “meeting of minds” by all the parties, the Agreement is therefore not binding on the Protester. Counsel cited the cases of Builders Limited v Vintage Investment Ltd & Another [2018] eKLR, Flora N. Wasike v Destimo Wamboko [1988] eKLR, Parcel v F.C. Trigell Ltd (trading as Southern Window and General Cleaning Co. and Another [1970] 3 ALL ER as cited in Nairobi High Court Civil Case No. 21 of 2015, NKM v SMM & Another [2019] eKLR.

10. He also cited the case of Nairobi High Court Succession Cause No. 2129 of 2015 -consolidated with Succession Cause No. 1975 of 2015-In the Matter of the estate of BM (deceased) RMM v RCM & 3others.

Petitioners’ Submissions 11. The Petitioner’s Counsel submitted that the Protester chose not to attend the Mediation session despite being duly informed, this is a Court of equity, fairness and justice, equity aids the vigilant and not the indolent, the spirit of Court Annexed Mediation is to reduce backlog of cases and to allow expedient disposal of cases, for the Applicant to elect not to attend the session is an abuse of the Court process, the Protester has not tendered any evidence to show that there was fraud, undue influence, coercion or intimidation in arriving at the Agreement. He cited the case of Re Estate of the late Adam Chebelieny Kibosia (deceased) [2021] eKLR and added that the Protest is an afterthought meant to delay the conclusion of the matter.

Analysis and Determination 12. As aforesaid, the issue herein is whether the Court should adopt the Court Annexed Mediation Settlement Agreement in full or whether the same should be set aside in its entirety or whether it should only be partially adopted.

13. The process of Court annexed mediation is governed by the Judiciary of Kenya Practice Directions on Court Annexed Mediation issued by the Chief Justice pursuant to Article 159 of the Constitution and Section 59B (1) (a), (b) and (c) of the Civil Procedure Act.

14. Article 159 (2)(c) of the Constitution of Kenya provides as follows: -“In exercising judicial authority, the courts shall be guided by the following principles:alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted subject to clause (3).”

15. In tandem with the above, Section 59C of the Civil Procedure Rules provide as follows:“1. Any suit may be referred to any other method of dispute resolution where the parties agree or the court considers the case suitable for such referral.2. Any other method of alternative dispute resolution shall be governed by such procedure as the parties themselves agree to or as the court may in its discretion order ...”

16. There is also Order 46 Rule 20 (1) of the Civil Procedure Rules which provides as follows:“Nothing under this order may be construed as precluding the court from adopting and implementing of its own motion or at the request of the parties, any other appropriate means of dispute resolution (including mediation) for the attainment of the overriding objective envisaged under Sections 1A and 1B of the Act.”

17. In the case of In re Estate of BM (Deceased) [2019] eKLR, Muchelule J (as he then was) stated as follows:“13. The Family Division and the Judiciary as a whole have embraced mediation in the resolution of civil disputes filed by the parties. Mediation is an informal and no-adversarial process where an impartial mediator encourages and facilitates resolution of a dispute between two or more parties. Like was stated by Judge P.J.O. Otieno in Amcon Builders Ltd v Vintage Investments Ltd & Another [2018] eKLR, the mediator merely guides the parties by setting an atmosphere for mutual, candid and honest discussions. He makes no determination. Where the parties have agreed on all, or some of, the issues in dispute he helps in the drafting of the agreement which is then owned by the parties by them appending their signatures. The agreement, known as the mediation settlement agreement, is then filed into court which adopts the same as the order or judgment of the court. The agreement becomes enforceable ……… if the mediation collapses, or no agreement is reached, the matter returns to court to be heard in the normal manner. The parties may ask the judge to refer their matter to mediation, or the judge may on his her motion refer the matter to mediation. Parties are under obligation, when referred to mediation, to attend the mediation sessions, and to act in good faith during the process. ………15. Court Annexed Mediation enhances access to justice, reduces backlog and, most importantly, allows parties an opportunity to generate home-grown solutions to their disputes. Solutions that they can live with and which can bolster their long-term relations. This is why, ordinarily, such a solution is not appealable. It is a contract mutually arrived at, and which would not, ordinarily, be the subject of review. …………”

18. A Mediation Settlement Agreement once adopted as an order of the Court becomes a binding Agreement as between the parties and cannot be set aside unless the party challenging it proves that there are justifiable grounds that warrant its setting aside. Such vitiating factors are similar to those applicable to all other contracts or consent orders, including, fraud, misrepresentation, coercion and undue influence. In this instant case, the Court is yet to adopt the Agreement since the Protest was filed before adoption thereof. However, the same principles for setting aside the order, post-adoption, would still be applicable in a case where, as herein, the Court is being asked not to adopt the Agreement forwarded by the Mediator.

19. In respect to the grounds applicable in setting aside consent orders, Achode J (as she then was), in the case of NKM v SMM &Anor [2019] eKLR, put it as follows:“27. The purpose of this court is to determine whether the settlement agreement adopted was obtained by fraud, or collusion, or by an agreement contrary to the policy of the court, or where the consent was given without sufficient material facts, or in misapprehension or ignorance of such facts or in general for a reason which would enable the court to set aside an agreement or consent judgment. See Justice Harris, J, (as he then was) in Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd (Supra)”

20. There is also the case of Flora N. Wasike v Destimo Wamboko[1988] eKLR where Hancox, JA, as he then was, observed as follows:“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 a contract aside or certain conditions remained to be fulfilled which are not carried out”

21. Similarly, in the English case of Purcel v. F. C. Trigell Ltd, (Trading as Southern Window And General Cleaning Co. And Another), [1970] 3 ALL ER671, the following was also stated:“It seems to me that, if a consent order is to be set aside, it can only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons, …..”

22. Further, in Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd [1982] KlR 485, Justice Harris pronounced himself as follows:“The marking by a court of a consent order is not an exercise to be done otherwise than on the basis that the parties fully understand the meaning of the order either personally or through their advocates, and when made, such an order is not lightly to be set aside or varied save by consent or one or other of the recognized grounds.”

23. Having laid out the law as above, I may also mention that in this case, the parties involved, including beneficiaries of the estate, are more than 10. It is not disputed that, save for only the Protester, the rest all signed and embraced the Mediation Settlement Agreement.

24. Upon considering the matter, I find that insofar as the Protester never signed the Agreement, the same cannot bind her. It is true that the Protester’s conduct and failure to co-operate was not one that is admirable, she was informed of the Mediation session fixed for 4 11 2022 but still chose not to attend. If the entire Agreement were to be set aside, it would mean that so much judicial time will have been wasted simply because of the Protester’s conduct. This was a Court annexed mediation and it was therefore by order of the Court that the Protester was supposed to attend. Attendance was not therefore to be at the whims of any party.

25. As aforesaid, the family herein is a large one and the interested parties totaled to more than 10 people. All, except only the Protester, attended. The failure to attend, failure to send prior communication and failure to even send any apologies to the Mediator could well amount to acts in contempt of Court. Nevertheless, the law is that as long as the Protester did not sign the Agreement, the same cannot bind her.

26. In the said case of In re Estate of BM (supra), faced with a somewhat similar scenario, Muchelule J (as he then was) found as follows:“It is clear that the final deed of settlement had not been agreed upon. The parties hoped to agree before 28th February 2018. On this, the parties agreed and appended their signatures. But, the attached template (both handwritten and typed) was not signed by the parties. It could not have been signed because the deed of settlement was yet to be adopted. It was to be adopted later (to be ready for lodging in court before 28th February 2018). 24. In conclusion, I find that the documents dated 14th February 2018 and 14th December 2017 did not amount to a mediation settlement agreement. The parties had not reached a settlement. They had not appended their signatures to any settlement. With respect, the mediator misled the court into thinking that the parties had reached a settlement. It was a misrepresentation on the part of the mediator that led the court to endorse the alleged settlement. There being no mediation agreement settlement, therefore, I allow the respondent’s application dated 20th November 2018 with costs. I set aside the orders of this court dated 12th March 2018 ……”

27. The Mediation dealt with the distribution of 5 estate properties in total. The only one in which the Protester has an interest or share is L.R. No. Nandi Kipkaren Salient 275. From my perusal of the pleadings, the property measures about 48 acres (approximately 20 hectares). In the Mediation Settlement Agreement forwarded by the Mediator, this property was to be shared out among 9 people. My understanding of the Protester’s grievance is that out of the said 48 acres, 20 acres was reserved to be shared between the Petitioner and the Protester (mother and daughter).

28. According to the Protester, her understanding was that the 20 acres reserved for her and the Petitioner in the property L.R. No. Nandi Kipkaren Salient 275 was to be shared equally at 10 acres for the Petitioner and 10 acres for the Protester, and that this is what she expected to be captured in the Agreement. Her complaint is that in the Agreement, the Petitioner was allocated 16 acres while the Protester was allocated only 4 acres.

29. It is therefore evident that the dispute does not involve the rest of the people who signed the Agreement and that the dispute is only between the Petitioner and the Protester. For the rest, they are all satisfied and contented with the Agreement. Further, the dispute between the Petitioner and the Protester only relates to one property, namely, L.R. No. Nandi Kipkaren Salient 275. Considering the matter holistically therefore, I do not think that it will be justified to hold everyone else who has signed the Agreement at ransom. For the rest, the Agreement should be adopted as forwarded and they be allowed to proceed with partial confirmation of the Grant.

30. Concerning the dispute as between the Petitioner and the Protester, it is only fair that they litigate their dispute and for the Court to then determine it after hearing them.

Final orders 31. In the premises, the Protest filed by the said Perez Arusei (Protester) vide the Affidavit of Protest sworn on 21 11 2022 and filed in Court on 2 12 2022 succeeds to the following extent:i.The Mediation Settlement Agreement dated 4 11 2022 distributing the 5 parcels of land comprising the estate herein, is hereby adopted save for or except the portion of the Agreement relating to the property L.R. No. Nandi Kipkaren Salient 275 in which 16 acres thereof was allocated to the Petitioner and 4 acres was allocated to the Protester. This portion of the Agreement shall therefore not be adopted but shall proceed to hearing to enable the Court determine the same.

ii.The rest of the distribution of the parcels of land comprising the estate shall therefore proceed to partial confirmation of the Grant.

iii.For avoidance of doubt, save for the 16 acres portion allocated to the Petitioner and the 4 acres portion allocated to the Protester in the property known as L.R. No. Nandi Kipkaren Salient 275, the rest of the allocations and or distribution of shares over the property L.R. No. Nandi Kipkaren Salient 275 and also the rest of the allocations and or distribution of shares over the properties known as L.R. No. Nandi Kipkaren Salient 78, L.R. No. Nandi Kipkaren Salient 290, L.R. No. Nandi Kipkaren Salient 285 and L.R. No. Uasin Gishu Ngenyilel Settlement Scheme 681 amongst the rest of the signatories to the Mediation Settlement Agreement are not affected and shall equally proceed to partial confirmation of the Grant.

iv.Being a dispute between mother and daughter, I make no order on costs.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 17TH DAY OF NOVEMBER 2023…………………WANANDA J. R. ANUROJUDGE