https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4056

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELCLA NO. E020 OF 2024** **MACAKI MACAI**……………………………………………………APPELLANT **VERSUS** **MICHECK NJERU MACHAKI**…………………………………RESPONDENT *(Being an appeal from the Ruling of Hon. Njoki Kahara, Senior Resident Magistrate, delivered on 21st February 2024 in Siakago PM-ELC No. E066 of 2019)* **JUDGMENT** 1. This is a first appeal against the Ruling of Hon. Njoki Kahara, Senior Resident Magistrate, delivered on 21st February 2024 in Siakago PM-ELC No. E066 of 2019, in which the trial court dismissed the Appellant's Application dated 6th September 2023, with costs to the Respondent. **BACKGROUND** 2. The Appellant, then plaintiff, instituted the suit against the Respondent, his son, by a plaint filed on 5th September 2019, alleging that the Respondent had fraudulently caused land parcel NTHAWA/GITIBURI/3707 ("the suit property") to be transferred into his own name under the false pretence of having purchased it. 3. In the course of the proceedings the suit was referred to mediation. A mediation session convened on or about 10th February 2020, registered as Siakago Mediation Cause No. Siak/Med/5/2020, was attended by the Appellant, the Respondent, and members of the Appellant's family. 4. On 8th October 2020, a settlement agreement said to have arisen from that mediation was placed before the trial court and adopted as a consent order, the effect of which was that the suit property would remain registered in the Respondent's name. 5. By an Application dated 6th September 2023 — filed almost three years after the consent order of 8th October 2020 was adopted — the Appellant sought, principally: (i) review and setting aside of the adoption of the consent order of 8th October 2020 and any consequential orders; and (ii) a declaration that the mediation settlement agreement recorded in Siak/Med/5/2020 was a nullity. 6. The Application was founded on five grounds appearing on its face, the burden of which was that the mediation had been conducted with the Appellant, an elderly man, expressing a wish that the land revert to him; that the parties had, at the material session, only executed an attendance sheet before the process was adjourned to a future date; that on 8th October 2020, while unwell, the Appellant later learnt that a settlement agreement had been drawn up and adopted recording that the suit property would remain with the Respondent, a position he denies ever having conceded; and that the true outcome of mediation was that the land would revert to him. 7. In his supporting affidavit sworn on even date, the Appellant deposed, in summary, that he filed the suit against his son in 2019; that he attended mediation with his family in February 2020; that the parties merely signed an attendance sheet which he understood was not a final agreement; that the understanding reached at mediation was that the land would revert to him; and that it was only upon later consulting his advocate that he discovered the recorded consent and settlement agreement stated the opposite of what he says was agreed. He annexed an affidavit of one Hellen Muriithi, described as a family member said to corroborate his account of what transpired at mediation. 8. The Respondent opposed the Application through a Replying Affidavit sworn on 12th July 2022, deposing that the Application was unmerited and an afterthought; that both parties were fully aware of, and voluntarily consented to, the terms of the mediation agreement without coercion or trickery; that the consent order was adopted in the presence of both parties; that the Appellant's own advocate had filed a Replying Affidavit in related proceedings as far back as 2022 and has been on record since 7th July 2022; and, significantly, that the Appellant had, by an application dated 27th August 2021, himself sought and obtained orders compelling execution of documents to give effect to the very consent order he now seeks to impugn. The Respondent annexed copies of the consent order, the Appellant's earlier Replying Affidavit, the Notice of Appointment of Advocate, and his response to the Appellant's 2021 application. 9. Upon considering the Application, the supporting and replying affidavits and annexures, and the parties' submissions, the trial court, in a Ruling delivered on 21st February 2024, dismissed the Application with costs to the Respondent. 10. Aggrieved, the Appellant preferred this appeal by a Memorandum of Appeal dated 15th May 2024, advancing six grounds which may fairly be condensed into the following complaints: that the learned Magistrate failed to properly consider the facts, evidence and submissions supporting the Application; that she failed to appreciate that the mediation agreement was procured through fraud, irregularity and misrepresentation of the parties' true intentions; that she failed to exercise her inherent jurisdiction having regard to the Appellant's age and his alleged difficulty in comprehending the mediation process, conducted in English; and that she dismissed the Application prematurely and without cogent reasons. 11. The Appellant sought orders setting aside the trial court's Ruling of 21st February 2024, allowing the Application dated 6th September 2023, and costs of the appeal and the Application. 12. Learned Counsel for the Appellant, in submissions dated 4th May 2026, framed a single issue — whether the appeal is merited — and relied, among other authorities, on Board of Trustees National Social Security Fund v Michael Mwalo [2015] eKLR, Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, Brooke Bond Liebig Ltd v Mallya [1975] EA 266 (as cited in Guzzini & Another v Tinga & 7 Others [2024] KECA 493 (KLR)), and Paul v Republic (as cited in Lucy Waruinu Maina, Mathews Munupi, Eliud Wekesa Khaemba v Republic [2003] KEHC 364 (KLR)), in urging that the consent order and mediation agreement ought to be set aside. 13. Learned Counsel for the Respondent, in submissions likewise dated 4th May 2026, relied on Samuel Wambugu Mwangi v Othaya High School [2014] eKLR, In re Estate of Kipturgut Arap Cheruiyot alias Kipturgut Cheruiyot (Deceased) [2025] KEHC 18755 (KLR), section 59B(4) and (5) of the Civil Procedure Act, and rules 36(3) and 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, in urging that the appeal is without merit and that the settlement agreement and consent order were properly adopted and ought not to be disturbed. 14. This being a first appeal, the duty of this court is to reconsider and re-evaluate the evidence on the record afresh and to reach its own independent conclusions of both fact and law, bearing in mind that it neither saw nor heard the witnesses and making due allowance for that disadvantage (Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123; Peters v Sunday Post Ltd [1958] EA 424). Where, as here, the proceedings before the trial court were conducted entirely on the basis of affidavit evidence and written submissions, without any oral testimony, this court is in as good a position as the trial court to evaluate that documentary record. **ISSUES FOR DETERMINATION** 15. Arising from the pleadings, the record and the rival submissions, the following issues fall for determination: (a) What is the applicable legal threshold for setting aside a consent order and an underlying mediation settlement agreement, and did the trial court properly apply it? (b) Whether the Appellant discharged the burden of establishing fraud, misrepresentation, mistake, or want of consensus vitiating the settlement agreement and consent order of 8th October 2020. (c) What bearing, if any, does the Appellant's delay and subsequent conduct have on the Application? (d) Whether the ground relating to the Appellant's age and alleged difficulty with the English language can avail him on appeal. (e) Whether the trial court's dismissal of the Application was against the weight of the evidence or otherwise unsustainable. **ANALYSIS AND DETERMINATION** 16. It is firmly settled in Kenyan law that a consent order or judgment, once duly adopted, has the effect of a contract between the parties and may only be set aside on grounds which would justify the rescission or setting aside of a contract — namely fraud, collusion, an agreement contrary to public policy, want of consensus, or a consent given without sufficient material facts or under mistake (Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266 at 269; Hirani v Kassam [1952] 19 EACA 131; Flora N. Wasike v Destimo Wamboko [1988] eKLR; Board of Trustees National Social Security Fund v Michael Mwalo [2015] eKLR). A court will not lightly disturb a concluded consent, precisely because the parties and their advocates are taken to have understood and freely accepted its terms. 17. That threshold applies with equal, if not greater, force to a settlement agreement arising from court-annexed mediation. Rule 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022 confines the setting aside of an order or decree arising from a settlement agreement to defined grounds such as fraud, collusion or mistake, reflecting the policy underpinning Article 159(2)(c) of the Constitution and section 59B of the Civil Procedure Act, which favour the finality and sanctity of mediated settlements as a means of expeditious, cost-effective and amicable dispute resolution. A party who invites a court to unravel a mediated settlement bears a correspondingly heavy burden of cogent, credible proof; bare or generalised assertions will not suffice. 18. I find no error in the trial court's implicit application of that threshold. The correct question, both for the trial court and now for this court, was never simply whether the Appellant is now dissatisfied with the outcome recorded in the settlement agreement, but whether he demonstrated, on credible evidence, the existence of fraud, collusion, mistake or absence of true consensus at the time the agreement and consent order were made. 19. Having re-evaluated the record, I am not persuaded that the Appellant discharged that burden. His supporting affidavit does not allege forgery of his signature on the settlement agreement, nor does it identify who altered the terms, when, or how a document said to record the opposite of what he asserts was agreed came to be placed before the trial court for adoption on 8th October 2020. It does not disclose that he raised any objection at the point of adoption, notwithstanding his deposition that he was already aggrieved by what had been recorded. The core of his case rests on his own uncorroborated assertion, made nearly three years later, that the written terms do not reflect the true outcome of mediation. 20. While the Appellant annexed an affidavit of a family member, Hellen Muriithi, said to corroborate his account, the substance of that affidavit is not set out anywhere in the record before this court, and it evidently did not persuade the trial court that it displaced the clear terms of a settlement agreement which, on its face, bears the hallmarks of one duly negotiated, reduced to writing and signed by the parties. An affidavit from an interested family member, without more — such as the mediator's own account, contemporaneous correspondence, or a complaint lodged proximate to the date of adoption — falls short of the cogent and reliable evidence required to unseat a concluded settlement. 21. This conclusion is reinforced by the Respondent's evidence, not seriously controverted, that the settlement agreement and consent order were adopted in the presence of both parties, who were fully aware of and freely bound by its terms. Nothing in the Appellant's affidavit meaningfully rebuts this. 22. Of particular significance is the Appellant's own conduct after the consent order was adopted. The Respondent's Replying Affidavit — not seriously challenged on this point — discloses that the Appellant, through his advocate, filed a Replying Affidavit in related proceedings in 2022 without at that time impeaching the validity of the consent; that his advocate has been on record since 7th July 2022; and, most tellingly, that by an application dated 27th August 2021 the Appellant himself sought and obtained orders compelling the execution of documents to give effect to the same consent order he now brands a nullity. 23. It is a well-established equitable principle that a party may not approbate and reprobate — he cannot invoke and derive the benefit of an order at one stage of proceedings and thereafter turn round to impeach its validity when it no longer suits him. The Appellant's conduct in 2021, invoking the consent order to compel compliance with its terms, sits uneasily with his present claim that he was unaware of, or never consented to, those very terms. This conduct, taken together with the delay of nearly three years before any challenge was mounted, materially undermines the credibility of his present assertions and further militates against disturbing a settlement that he has, in the interim, himself treated as valid and enforceable. 24. The complaint that the trial Magistrate failed to have regard to the Appellant's age and his alleged difficulty in comprehending the mediation process in English is raised for the first time in the Memorandum of Appeal. It does not feature among the grounds of the Application dated 6th September 2023, nor is it pleaded or particularised anywhere in the Appellant's supporting affidavit; there is no medical evidence, no averment as to the language of instruction during mediation, and no explanation of what accommodation, if any, was sought or denied. An appellate court will generally be reluctant to entertain a wholly new factual ground that was not canvassed, and could not have been tested, before the trial court, and that in any event lacks any evidentiary foundation on the record. This ground must accordingly fail. 25. Taking the record as a whole, I find nothing to suggest that the trial Magistrate's dismissal of the Application was against the weight of the evidence or otherwise unsustainable. To the contrary, upon independent re-evaluation, the material properly before the trial court — and now before this court — falls well short of establishing fraud, collusion, mistake or want of consensus of the kind required to disturb a mediated settlement and the consent order adopted pursuant to it. The remaining grounds of appeal, alleging generally that the trial Magistrate failed to consider the evidence and submissions, are not made out; they are not accompanied by any specific demonstration of matters overlooked that would have altered the outcome. **DISPOSITION** 26. For the foregoing reasons, I find no merit in this appeal. The settlement agreement recorded in Siakago Mediation Cause No. Siak/Med/5/2020 and the consent order adopted on 8th October 2020 in Siakago PM-ELC No. E066 of 2019 remain valid and subsisting. 27. Accordingly, the following orders shall issue: (a) The appeal be and is hereby dismissed. (b) The Ruling of the trial court delivered on 21st February 2024 be and is hereby upheld. (c) The costs of this appeal shall be borne by the Appellant. **It is so ordered.** DATED, SIGNED AND DELIVERED AT EMBU THIS 02ND DAY OF JULY, 2026. …………………………………… **E. C. CHERONO** ELC JUDGE, EMBU *In the presence of:* 1. Appellant-present 2. Respondent-present 3. Ruth C/A