[2022] KEHC 11877 (KLR)

Maina v Biruri & another (Succession Cause 113 of 2006) [2022] KEHC 11877 (KLR) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11877 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 113 of 2006

RN Nyakundi, J

May 17, 2022

Between

Peter Ruo Maina

Applicant

and

Rosemary Wangare Biruri

1st Respondent

Margaret Njeri Biruri

2nd Respondent

Ruling

1. The application before the court is a Notice of Motion dated February 7, 2022 expressed to be brought under the Civil Procedure Act, order 51 rule 12 of the Civil Procedure Rules and the Succession Act. The applicant seeks the following orders;1. Spent2. This honourable court be pleased to set aside, vary and or review the mediation settlement agreements dated July 24, 2021, August 10, 2021 and August 12, 2021. 3.The orders of September 30, 2021 be set aside and court be pleased to reopen the mediation sessions and parties be heard afresh on the issues not agreed and properties erroneously allocated to beneficiaries.4. The honourable court be pleased to appoint a different mediator from the previous one.5. That the cost be in the cause.

2. The application is based on the grounds set out therein and the affidavit in support of the application deponed by the applicant, rosemary Wangare Biruri.

3. It is the applicant’s case that some properties were left out in the mediation settlement agreement. Further that the parties never agreed on all issues and there were glaring errors which include allocation of properties that were not part of the estate and properties that were not properly described. The parties were referred to the ground to agree on some of the properties and were to attend a final mediation session on August 27, 2021 for a final session but instead the mediator closed and did a final agreement after obtaining the surveyors’ report. The settlement was filed without fully dealing with all the assets in the estate.

4. The applicants sought to have the mediation reopened as they will be greatly prejudiced if some of the properties are left out.

5. The respondents responded vide a replying affidavit dated February 16, 2022 where the 2nd respondent deponed that she attended all the mediation sessions and the agreements were filed without a hitch. The settlements are substantially performed in that the applicant has taken over her shares in all assets that were given to her. In Nakuru town the applicant has relinquished control over plots Nakuru municipality Block 2/510 and Block 3/638. Further, he collected rent of kshs 30,000/- for January 2022.

6. The respondent denied that the mediator addressed the claim by a purchaser called Alloys Muhoro but the issue was resolved at family level and he was awarded the title no Eldoret municipality block 14/1576.

7. The respondent deponed that there is a typographical error in describing L R Nakuru Bahati/Wendo/Block 1/281 which measures 10 acres and which was agreed to be shared by both houses. The agreement captures Bahati/Wendo/Block 1/286.

8. The protest by the applicant over L R location Kanyanyaine/394 was heard and resolved and she appended her signature. They visited the contested area in the company of their lawyers and agreed on the physical demarcation of all contested issues. With regard to title nos. Eldoret Municipality block 15/2112 a title exists but they were unable to locate it on the ground and plot no Kambi Somali unregistered with temporary structures the respondent and family members have been collecting rent but the applicant is yet to collect his. Although they gave themselves the date of December 31 for the handover, the applicant has kept all the titles for the entire estate and has not cooperated to work out a transfer process that would result in each house getting their due. The fairest thing to do would be to have all the deeds placed in the hands of the court and the deputy registrar be empowered to sign all the conveyance instruments in favour of the beneficiary houses and individuals.

9. The 2nd respondent, Peter Ruo Maina, deponed affidavit in response on Febraury 18, 2022. He deponed that the property LOC9/Kanyenyaini/394 was apportioned to him by the settlement agreement dated August 10, 2021 and the ensuing court order of September 30, 2021. The same is not contested in these proceedings. The applicant herein raised no issues with the mediation settlement agreement at the time the same was filed before the deputy registrar on September 21, 021 and October 5, 021 to confirm the status of mediation or challenge the adoption of the settlement agreement. The applicant is challenging the orders over 160 days after the orders were adopted and the same is unreasonable delay. She has neither demonstrated that she was coerced to sign or that there was fraud. She participated in all the mediation sessions and signed the mediation settlement agreements leading to the consent orders. the applicant has not demonstrated the existence of any agreement that would merit the setting aside of the consent orders.

Decision 10. Upon reading the pleadings and the submissions I have identified the following issues for determination;Whether the mediation agreements dated July 24, 2021,August 10, 2021 and August 12, 2021 should be set aside

Whether the mediation agreements dated July 24, 2021, August 10, 2021 and August 12, 2021 should be set aside 11. I note that the application is undated and it is not clear whether the applicant appeared before a commissioner of oaths for the swearing of the affidavit. This raises some concerns as to the defectiveness of the application and whether the same is fatal.

12. Mediation settlements are finalised by way of an order of the court. Substantially the settlements amount to a consent order as both parties consent to the terms of the agreement and file the same in court for adoption. What the applicant seeks is the setting aside of, essentially, a court order.

13. In Kenya Commercial Bank Ltd Versus Specialized Engineering Co Ltd [1982] KLR 485, cited with approval in In re Estate of the late Adam Chebelieny Kibosia (Deceased) [2021] eKLR it was held that an order entered into by consent is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it 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 representation or ignorance of such facts in general for a reason which would enable the court to set aside an agreement. Justice Harris at page 493 opined: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.”

14. In Flora N Wasike v Destimo Wamboko [1988] eKLR Hancox, JA, as he then was, said: -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”

15. In Board of Trustees National Social Security Fund v Michael Mwalo [2015] eKLR, the Court of Appeal stated as follows:A court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the policy of Court.”

16. The applicant has also sought for the relief of review in of the said orders. Section 80 of the Civil Procedure Actand order 45 rule 1. Section 80 of the Civil Procedure Act provides as follows:80. Any person who considers himself aggrieved-(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

17. Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows;45 Rule 1 (1) Any person considering himself aggrieved-a.By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgement to the court which passed the decree or made the order without unreasonable delay.”

18. Under Section 59B (4) and (5) of the Civil Procedure Act: -(4)An agreement between the parties to a dispute as a result of a process of mediation under this Part shall be recorded in writing and registered with the Court giving the direction under subsection (1), and shall be enforceable as if it were a judgment of that Court.(5)No appeal shall lie against an agreement referred to in subsection (4).”

19. The upshot of the foregoing is that the applicant needs to prove that the settlement agreements were made under undue influence or there was coercion and intimidation in order to have the order set aside. further, given that the agreement is enforceable as a judgment of a court, the conditions for review should be met for the same to be set aside.

20. She contended that the final settlement was reached unilaterally by the mediator but a perusal of the final agreement dated August 12, 2021 shows that the applicant appended her signature on the final agreement.

21. She claimed that Peter Ruo was a stranger to the estate however she did not contest his participation in the mediation meetings or the allocation of the property LOC9/KANYENYAINI/394 to him during the proceedings.

22. The 1st respondent conceded that there was an error with regards to describing L R Nakuru Bahati/Wendo/Block 1/281 which measures 10 acres and which was agreed to be shared by both houses. The agreement captures Bahati/Wendo/Block 1/286. That is the only error on the face of the record. the applicant has stated the same with regards to the plot number captured in the agreement and agrees it does not form part of the estate.

23. Upon perusing the deponements in the supporting affidavit, it is clear that the applicant is discontented with the terms of the agreements despite having appended her signature to the same. She has not contested the validity of the signature that she appended therefore there is no allegation of fraud. None of the issues she raised amounts to the grounds that would be required to set aside a content order. The applicant has not proven coercion, fraud, or undue influence. She has not proven that there was any intimidation. She alleges that the mothers and daughters were not allowed to speak but she went ahead and appended here signature to the final settlement.

24. Section 107(1)(2) of the Evidence Act provides: -(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

25. Section 112 of the Evidence Act provides thus:In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

26. The items the applicant refers to in the agreement dated August 10, 2021 which are contained in the order filed on September 30, 2021. A perusal of the order shows that the same only has 7 items. The issue of the interest of Alloys Muhoro was settled by the administrators at family level. That notwithstanding, the items raised are not contained in the agreement dated August 10, 2021.

27. Further, the application with regards to the property that was to be apportioned to Peter Ruo the court issued a ruling on Febraury 27, 2019 striking out his application as he had sought to have his interest determined before administration of the property. this did not distinguish his claim as the court was very clear in stating that there was an avenue to be followed in succession to enable him realise his interest in LOC9/Kanyenyaini/394.

28. What the applicant seeks is to rewrite the agreement between the parties. She contends that most of the allocations were unfair or that some of the houses should have been compensated differently. Be that as it may, there is no indication that the agreements were fraudulent or that there was any coercion to have the parties agree to the terms.

29. In the premises, I find that the application succeeds only to the extent of varying the description of L R Nakuru Bahati/Wendo/Block 1/286 which is not part of the estate. the correct property is Bahati/Wendo/Block 1/281 as per the list of properties in the affidavit in support of the petition for letters of administration. In relation to the question of whether the mediation agreement is in operative it is for the party resisting it is enforcement to bring himself or herself within the recognisable principles in the above cited cases. Alas, to me this appears to have been a second attempt of a bite of the cherry. To that extent I find the agreement not null, void, inoperative or incapable of being performed save for the matters alluded to in this ruling.

30. The other prayers fail in entirety as the applicant has not satisfied the threshold for the setting aside of a mediation settlement.

DELIVERED, SIGNED AND DATED at Eldoret via email this 17th day of May 2022. R NYAKUNDIJUDGE