https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3912

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL NO. E060 OF 2024** **ISMAEL KASSIM WESONGA…........................... APPELLANT** **VERSUS** **MARY ODINGA WESONGA....................... 1ST RESPONDENT** **JOSEPH INDUSWE (Suing as a legal representative of** **MARIAIANA JUMA MALALA……………….….2ND RESPONDENT** ***(Being an appeal against the ruling of Hon. Mercella A. Onyango (SRM) delivered on 19th September 2023 in Mumias ELC Case No. E015 of 2023)*** **JUDGMENT** **Introduction** 1. Ismael Kassim Wesonga filed this appeal challenging the ruling of Honourable Mercellla A. Onyango (SRM) made on 19th September 2024 vide Mumias PM ELC CASE NO. E015 OF 2023. In the impugned ruling, the learned Magistrate declined to set aside a mediation agreement and stated that the matters raised by the appellant were well within his knowledge at the time of the agreement. **Background.** 1. Mumias SPM ELC CASE NO. E015 OF 2023 was commenced by way of plaint dated 9th March 2023 filed by the respondents herein seeking orders for declaration that the appellant held parcel No. E/WANGA/MUNGÁNGÁ/ 967 and 969 in trust for the late ANAH KHAWOYA ODINGA (Deceased). They further sought for orders of mandatory order directing the defendant to subdivide and transfer 2 acres from parcel E/WANGA/MUNGÁNGÁ/ 969 to the 2nd plaintiff to hold in trust for the estate of Marisiana Juma Malala and further subdivide and transfer 2 acres of parcel E/WANGA/MUNGÁNGÁ/ 967 to the 1st plaintiff. They sought an alternative prayer that the plaintiff has acquired 2 acres of land parcel E/WANGA/MUNGÁNGÁ/969 by way of adverse possession. They further sought costs of the suit. 2. The plaintiffs pleaded that the 1st plaintiff and the late Marisiana Juma Malala are the daughters of the late Anahh Khaoya Odinga who was the registered owner of parcel E/WANGA/MUNGÁNGÁ/ 639 which she acquired on first registration on 16th November 1966. That the plaintiffs mother subdivided the aforesaid parcel into parcel No.s E/WANGA/MUNGÁNGÁ/ 967, 968 and 969. That she registered parcel Nos. E/WANGA/MUNGÁNGÁ/ 967 and 969 in the defendant’s name to hold it in trust for her daughters as she had no son fearing that the suit property would be grabbed by her in-laws. 3. That the defendant is a son of Winfridah Masakhwe one of the daughters of Anahh Khawoya Odinga. That the defendant is in occupation of 2 acres but holding the other 2 acres in trust for the plaintiffs. That their late mother Anahh Khawoya Odinga made the allocations of 2 acres per a daughter and on 9th September 2014 she called a family meeting to confirm the allocations. 4. The defendant entered appearance and filed defence dated 11th May 2023. He denied the plaintiffs’ claim and stated that the plaintiffs’ mother transferred the suit property to him as a gift. That the suit property belonged to one Fabio Odinga and that the plaintiffs ought to claim land from their father. That the plaintiffs took advantage of their ailing mother and coerced her during a meeting on 9th September 2014 to affirm their allocations. 5. The matter was then referred to mediation on 9th October 2023. Thereafter, a mediation settlement agreement dated 31st October 2023 was filed in court on even date. In that agreement, the parties agreed that the land belonging to Anahh Khaoya be distributed equally between her four daughters namey; Wilfridah Masakhwe; Marcella wanga; Mary Odinga and Marciana Juma (deceased). The appellant was to be given one acre. Joseph Indusie was to transact on behalf of Marciana Juma Deceased. Parties agreed to share the cost of distribution of the land. The mediation settlement agreement was signed by Mary Odinga; Joseph Indusie Opusi; Marcella Wanga; Wifridah Masakhwe; Cosmas Induswe Olunga; Wesonga Erick Munyendo; Ismael Kassim Wesonga. The mediator one Samson Olloo Ouma also signed the consent. 6. The mediation settlement agreement was adopted as the judgment of the court in the presence of counsel for the plaintiff and the defendant in person on 23rd November 2023. 7. On 20th June 2024, the appellant herein filed application dated 19th June 2024, citing Rule 39 of the Civil Procedure (Court Annexed Mediation) Rules and sections 1A and 1B of the Civil Procedure Rules. In the application, he sought leave to file an application to set aside the orders of 23rd November 2023 adopting the mediation settlement agreement dated 31st October 2023. The basis of the application was as follows; 8. **There was a mistake on the part of the mediator because he failed to recognize that the suit property was transferred by the deceased to the defendant in 1994.** 9. **That the mediation agreement was invalid as it goes against the Land Registration Act, the Succession Act and the Probate and Administration Rules** 10. **That the suit property was not part of the estate of Anah Khawoya Odinga because it was in the name of the defendant** 11. **That there was misrepresentation of facts to the mediator by the plaintiffs to the effect that Anah Khawoya Odinga died intestate when she never left a will.** 12. **That the plaintiffs misrepresented facts to the mediator when they failed to disclose that they were not biological children of Fabio Odinga but were born from another clan and did not qualify to inherit ancestral land** 13. **That the plaintiffs misrepresented important facts to the mediator by alleging that the deceased called a meeting on 9th September 2014 to share her estate, when the deceased was bed ridden in March 2014 and died in November 2014.** 14. **That the registration of the suit property in the defendant’s name was not by fraud by done procedurally as the deceased transferred it to the defendant.** 15. The application was opposed. The plaintiffs filed a preliminary objection dated 17th July 2024 wherein they argued that the court lacked jurisdiction to set aside a consent order and that the court could not sit on appeal against its own orders. 16. In a ruling made on 19th September 2024, the learned trial magistrate found that the appellant had not met the threshold for grant of orders sought and dismissed his application. 17. Aggrieved with the decision of the trial court, the appellant herein challenged the said decision by way of a memorandum of appeal dated 30th September 2024 citing the following nine grounds of appeal; 18. **That the learned trial Magistrate erred in law and facts in deliberately referring to the ruling herein as a judgment, while making a determination on an application in the suit, hence rendering the matter concluded while it is pending determination of two other applications.** 19. **That the learned trial Magistrate erred in law and facts by finding that there was no ground to grant leave for an application to set aside the mediation agreement herein, while overlooking the appellants argument that the said mediation agreement went against the provisions of Land Registration Act and the Succession Act Laws of Kenya.** 20. **That the trial Magistrate erred in law and facts by conducting the suit herein as a Succession cause while the same was filed as an environment and land case.** 21. **That the learned trial Magistrate erred in holding that the applicant failed to present any evidence that the mediator did any mistake during the mediation agreement, while the applicant contended that the mediator based his mediation process on a document that was referred to as a will while the same was not a will as the deceased died intestate.** 22. **That the learned trial Magistrate erred in law and facts by disregarding the assertions by Maricella Wanga and Winfridah Masakhwe in their affidavit that they were never accorded audience during the mediation process, the mediation agreement was not properly arrived at.** 23. **That the learned trial Magistrate erred in law and facts by taking the seal of the mediator and defending the mediation agreement, while the applicant contended that the parties in the suit had disagreed over the mediation agreement and wish to give evidence in court and the matter determined on merit.** 24. **That the trial magistrate erred in law and facts by stating that the parties agreed to the mediation agreement, while the parties have filed two different applications seeking the determination of the court on the suit, a clear indication that the parties are yet to agree.** 25. **That the trial Magistrate failed to appreciate that the central subject of the case is land and is common knowledge that land matters are very emotive to be brushed aside without proper and procedural conclusion arrived.** 26. **That the learned trial Magistrate erred in law and facts in awarding costs to the respondent while the matter involved family members.** 27. Consequently, the appellant sought the following orders; 28. **That the appellant’s appeal be allowed with costs** 29. **That the ruling of the Honourable learned Senior Resident Magistrate be set aside or varied and substituted with an order granting the appellant leave to file an application to set aside the mediation agreement herein.** 30. **That the Honourable court be pleased to set aside or vary the orders of the senior Resident Magistrate on costs and be substituted with an order of each party to bear their own costs.** 31. The appeal was canvassed by way of written submissions. On record are submissions filed by the appellant dated 2nd August 2025 and those by the respondents dated 3rd September 2025. **Appellants submissions.** 1. The appellant submitted that the trial court erred in holding that there was no ground to set aside the mediation agreement when the same was invalid under Kenyan law. He argued that it was wrong for the suit property to be referred in the mediation agreement as belonging to the late Anah Khawoya when it was registered in the name of the appellant in 1994 when the deceased was still alive. He maintained that the registration of the suit property in his name was not in trust and referred to section 28 of the Land Registration Act. He contended that no one has challenged his registration or ownership. That the mediation agreement purported to share the suit property contrary to provisions of sections 24, 25 and 26 of the Land Registration Act. That since the registration of the suit property did not indicate that there was a trust, the trial Magistrate was wrong in adopting the mediation settlement agreement. 2. Reliance was placed on the case of **Gitau v Gitau & Another [2022] KEELC 3144 (KLR) (9 June 2022) (Judgment)** for the proposition that a trust must be proved with cogent evidence. The appellant argued that trust was not proved yet the mediation agreement granted land to the respondents. To buttress his position on what ought to be proved for the court to be satisfied that there was trust, the appellant cited the case of **Isaack Kieba v Issaya Theuri Mlinturi & Another (2018) e KLR.** 3. It was further contended by the appellant that the trial court erred in disregarding affidavits of parties allegedly not accorded audience during mediation process, referring to the affidavits of Maricela Wanga and Wilfridah Masakhwe. Further that the trial court was wrong in holding that there was no mistake on the part of the mediator. On the same, the appellant argued that the mediator was misled to rely on a questionable document alleged to have been authored by the deceased, and that the authenticity of the document was not tested to confirm if it indeed reflected the wishes of the deceased. That as trust was not proved, the mediator was wrong in sharing the suit property as the same did not form part of the deceased’s estate. 4. Regarding ownership, the appellant argued that there were two applications on record seeking enforcement of the mediator’s decision which meant that the same could not be enforced. He maintained that the suit property was ancestral land and the respondents are not from his clan. 5. On costs, the appellant relied on the case of **Ngara v Njeri & Another [2024] KEHC 9597 (3 May 2024) Ruling** and argued that where family members are involved like in this case, each party ought to bear its own costs. **Respondents’ submissions.** 1. The respondents relied on provisions of Article 159 (2) of the Constitution of Kenya and submitted that in the exercise of judicial authority, courts are enjoined to promote alternative dispute resolution mechanisms which include mediation. They referred to Rules 32 and 34 (2) of the Civil Procedure (Court Annexed Mediation) Rules of 2022 and submitted that upon agreement at a mediation, parties and the mediator sign the mediation agreement and there is no need for them to attend court for adoption of the agreement. 2. They argued that the appellant does not deny attending mediation willingly, signing the consent and did not object to its adoption. On the validity of the mediation agreement, the respondents argued that the same was valid as it shared the suit property among the deceased’s daughters. 3. They also argued that the mediator was not bound by provisions of the Land Registration Act but was mandated to identify and resolve the issues. That the appellant a grandson agreed to share the suit property with the deceased’s daughter and not to strangers. That as parties are family members, no facts were not in the appellant’s knowledge. That in acknowledgment of the decree, the appellant filed applications dated 3/4/2024 seeking to execute the decree. 4. The respondent wondered who misrepresented facts to the mediator and why the appellant did not object to any misrepresentation if at all there was any misrepresentation. They maintained that the appellant was present at the adoption and did not object to it. On the affidavits of Maricella and Wilfridah, the respondents argued that the two were not parties to the suit and never sought joinder hence the court could not set aside the mediation based only on their affidavits. **Analysis and determination.** 1. The court has carefully considered the appeal, the record and the rival submissions. This being a first appeal the role of this court is to reanalyze the record and determine whether the conclusions reached by the trial court should stand or not and give reasons either way (See **Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR**). The only issue that arise for the court’s determination is whether the trial court was wrong in dismissing the appellants application dated 19th June 2024 and whether the appellant had met the threshold for grant of leave to seek to set aside a mediation settlement agreement. 2. This case involves the appellant and his maternal aunties, who are sisters to his mother. The suit property was previously owned by and registered in his grandmother’s name the late Anah Khawoya Odinga. Although the same was transferred to him by his grandmother, she indicated in the meeting of 2014 that he was entitled to 2 acres while her daughters were entitled to two acres each. The appellant argued that his grandmother’s affirmations were obtained through coercion. This suit was not heard. When the matter was referred to mediation, the parties herein together with the whole family of the late Anah Khawoya Odinga signed a mediation agreement dated 31st October 2023. That agreement was adopted as an order of the court on 23rd November 2023. 3. I have considered the appeal. The same is a challenge against the decision of the lower court dismissing the appellant’s application for leave to apply to set aside the mediation settlement agreement. However, from the grievances stated in the memorandum of appeal and submissions, it is clear that substantively, it is an appeal against the mediation agreement itself, as the appellant has treated it as though it were a decision of the mediator imposed on him. 4. In contesting the lower court’s ruling, the appellant argued that the mediator was misled and relied on misrepresentations from the respondents on the questions of the existence of trust and the authenticity of the will and that the suit property is ancestral land and also his land. The appellant blames the mediator of many wrongs including his alleged failure to take into account relevant matters including that trust was not proved, that the suit property did not form part of the deceased’s estate and that the alleged will’s authenticity was not tested and that the agreement was not in tandem with the provisions of the Land Registration Act. 5. In arguing that the evidence ought to have been tested, what the appellant essentially wanted was a cross examination and a documented hearing before the mediator, which cannot to be done in mediation, because a mediator is neither a court nor is he/she obligated to interpret the law; mediation is not a trial; any mediation settlement agreement arrived at by the parties does not constitute a decision of the mediator; and the mediation process is confidential. 6. Mediation is a voluntary and confidential dispute resolution process facilitated by an impartial third party who is referred to as a mediator who guides dialogue between two or more disputants towards a mutually agreeable solution. Mediators have no authority to impose a resolution of the dispute on the parties. 7. I have looked at the impugned mediation agreement. It is an agreement of the parties. It is not a decision of the mediator. The parties are well known to each other. The appellant is a son of the respondents’ sister, meaning that he is their nephew. Therefore, matters relating to their family are well known to all of the parties involved. The mediation agreement was signed by the parties on 31st October 2023 and the appellant did not allege coercion, undue influence or fraud. In fact, the appellant through his counsel, filed application dated 3rd April 2024 seeking orders to implement the mediation agreement including survey of the suit property so that each party gets their share as allocated in the agreement. 8. Where a party intends to challenge a mediation agreement, they can only do so with leave of court. 9. Rule 39 of the Civil Procedure (Court Annexed Mediation) Rules Legal Notice 145 of 2022 states as follows; **39. Setting aside an order or decree arising out of a settlement agreement** **(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 subrule (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 subrule (3).** **(5) The court shall hear and determine an application under this on priority basis within thirty days after filing.** 1. Therefore, in considering whether or not to grant leave to an applicant who intends to apply to set aside a mediation agreement, the court in exercise of its discretion ought to be satisfied that the applicant has demonstrated a *prima facie* case with chances of success in demonstrating that there is misconduct, fraud, or fundamental mistake by the mediator; fraud, collision, or misrepresentation by one of the parties other than the applicant; a fundamental mistake by any of the parties 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 and rendered the agreement unfair and unequitable; where one of the parties is under legal incapacity at he time of the agreement; where the agreement is invalid under Kenyan or international law or is incapable of enforcement. 2. In the instant matter, the appellant argued that the mediation agreement was invalid under the Kenyan law; that there was misrepresentation of facts and that the agreement was incapable of enforcement. 3. Regarding mistake, the appellant argued that there was a mistake on the part of the mediator who failed to recognize that the suit property was transferred by the deceased to the appellant in 1994 and that his title has never been challenged for over 30 years. On this issue, it was not contested that before the suit property was transferred to the appellant, it lawfully belonged to the late Anahh Khawoya Odinga and no consideration was paid by the appellant before the transfer. 4. It was also undisputed that during her lifetime the said deceased in 2014, allocated the suit property to her daughters. Whether that was through coercion on the deceased as stated by the appellant, was a matter that had been contested in the suit. The respondents’ claim was that the appellant held the land in trust for the children of the late Anah Khawoya Odinga. The suit did not go to trial but was resolved by a mediation settlement agreement and therefore the appellant’s argument that trust was not proved and his reliance on sections 24, 25, 26 and 28 of the Land Registration Act is misplaced. 5. The agreement resolved that matter by granting each of Anah’s children an equal share and another portion to the appellant. The mediator did not resolve the dispute, he only offered a facilitative environment for parties to agree. There is nothing in the mediation settlement that points to the appellant’s assertion that there was a mistake. The mediator was not applying sections 24, 25, 26 and 28 of the Land Registration Act and was not determining whether there was trust or the authenticity of the document allegedly authored by the deceased in 2014. 6. The appellant never purchased or paid any consideration in obtaining title to the suit property and there was no mistake on the fact that before his registration, the suit property lawfully belonged to the late Anah Khawoya Odinga. There is therefore nothing to demonstrate that there was a mistake or any matter which was not within the appellants knowledge at the time of the settlement. As the mediation agreement was not a decision of the mediator, the appellant’s allegations that the mediator was misled and misrepresentations were made to him are baseless. 7. The next issue raised by the appellant was that there was misrepresentation of facts. The facts that were misrepresented have not been stated and therefore that ground is implausible. In any case the mediator was not the decision maker, it is the parties in the suit who made the agreement. 8. Lastly, it was argued by the appellant that the mediation settlement agreement was unenforceable as it sought to share out the appellants land contrary to sections 24, 25 and 26 of the Land Registration Act. He argued that it was wrong for the mediator to refer the suit land as belonging to the late Anah when it had been transferred to him 31 years ago. No findings were made by the mediator and no law was breached by the agreement. 9. The appellant was Anah’s grandson. Anah had four daughters including the appellant’s mother. No consideration was paid for the land to be transferred to him. Anah stated in a written document made in 2014 that the suit property was held in trust by the appellant for her daughters. There is no decision before me made by the mediator. What is before court is a settlement agreement by the parties. The appellant cannot therefore hold on to sections 24, 25 and 26 of the Land Registration Act to argue his case afresh. Therefore, there is no prima facie evidence that the mediation settlement agreement contravened the law. 10. On enforceability, it was agreed that the appellant a grandson gets one acre while the four daughters of Anah get equal shares. There is nothing unfair or unconscionable about the settlement. Other grandsons of the late Anah never got anything from the suit property and therefore the settlement in fact favoured the appellant above the other grandsons. Enforcement of the same will require him to execute transfer documents accordingly and in default the Executive officer of the trial court will do so. Thus, the settlement is enforceable. 11. A mediation settlement concerns itself with the interests of the parties. A mediation is a resolution of a dispute by the parties facilitated by an impartial mediator. The mediator does not make a decision. A settlement is essentially a contract and to set it aside the grounds for setting aside a contract must be demonstrated. In this case, no prima facie grounds have been shown. 12. In the premises, there is no basis for this court’s interference with the decision of the lower court. The appellant having voluntarily signed the mediation agreement and subsequently having sought the implementation of the same, the application for leave to set aside the mediation agreement dated 19th June 2024 was a mere afterthought and a demonstration of his recalcitrance. 13. In view of the above, I am clear in my mind that no *prima facie* case was made by the appellant to warrant grant of leave to apply to set aside the impugned mediation settlement agreement and therefore the trial court was right in dismissing the application dated 19th June 2024. 14. Regarding the titling of the ruling as a judgment, I have considered the hard copy of the ruling on the court file. The same is titled as a ruling on the application dated 19th June 2024. For some reason only known to the appellant, that ruling was not included in the record of appeal. What the appellant presented was what was uploaded on the court’s CTS, which indicated “judgment” instead of “ruling” and which was only in respect of part of the ruling. That is a mistake of the court registry staff who uploaded part of the ruling as a judgment, instead of uploading the entire ruling as a ruling. That error cannot form the basis of an appeal, as the same is a clerical mistake that ought to be rectified under section 99 of the Civil Procedure Act. I therefore direct the trial court to correct the error by uploading the whole ruling of the trial court on the CTS as a ruling and not as a judgment. 15. On the question of costs, it is trite that costs follow the event and that they are awarded at the discretion of the court as provided for in section 27 of the Civil Procedure Act. The mere fact that a case involves family members is not an automatic basis for an order that each party should bear its own costs. Where a family member files a vexatious matter or application for no other purpose but to vex their opponent, costs may be awarded to the successful party. 16. In the present case, on the substantive claim, the appellant argued that the suit property is ancestral land and that the respondents are not from his clan and should not get a share thereof. However, when addressing the question on who should bear costs, the appellant remembered that the dispute was between family members and that the trial court was wrong in awarding costs. Thus, when convenient, the respondents were deemed his family, when not convenient, they were not even members of his clan. This is nothing but approbating and reprobating on the part of the appellant which is improper and made in bad faith. 17. From the consent, the appellant was the only grandchild of Anah Khawoya who got a portion of land previously owned by his grandmother. The children of his grandmother including the appellant’s own mother got an equal share. For all purposes, the mediation settlement was explicitly fair. To file a fresh application against his aunties arguing that the land in dispute was ancestral land and that the same was exclusively his, when he had voluntarily signed the mediation agreement and filed an application to implement it, was not only vexatious, but also an abuse of the court process and therefore the trial court was right in condemning him to pay costs. And for that same reason, the appellant shall bear the costs of this appeal. 18. The upshot is that I find no merit in this appeal which I hereby dismiss with costs to the respondents. 19. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 17TH DAY OF JUNE 2026** 1. **NYUKURI** **JUDGE** **In the presence of;** No appearance for the appellant No appearance for the respondents Court Assistant: Delphine