[2023] KEHC 25636 (KLR)

Mbaja v Ouko & 5 others (Succession Cause 2 of 2009) [2023] KEHC 25636 (KLR) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25636 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Cause 2 of 2009

RE Aburili, J

November 20, 2023

Between

Masliana Ojwang Mbaja

Petitioner

and

David Oduor Ouko

1st Objector

Josinta Auma Oduor Ouko

2nd Objector

Mathew Nyamori

3rd Objector

Charles Aluodo Nyamori

4th Objector

Perez Emilly Auma Omondi

5th Objector

Cement & Sand Engineering Co Ltd

6th Objector

Ruling

1. The objectors herein commenced the instant application vide a Motion dated 8th June 2022 seeking the following orders;a.That this Honourable court be pleased to set aside, vacate and or expunge from the court record the mediation settlement agreement dated 4th November 2020 and any subsequent steps, processes or proceedings pursuant to the order.b.That this honourable court do order that the mediation file in relation to these proceedings be availed before it for scrutiny.c.That costs of this application be provided for.

2. The application is anchored on the grounds therein and supported by the joint affidavit of David Oduor Ouko and Josinta Auma Oduor Ouko.

3. It was the objectors/applicants case that the purported mediation settlement agreement dated 4. 11. 2020 purported to have been arrived at by two lawyers, Omondi Teddy representing the petitioner/respondents and Justus Okoth who had no instructions from the objectors/applicants but was only acting for the 5th and 6th objectors who were not party to the mediation proceedings but only the applications dated 12. 2.2014 and 23. 4.2014.

4. The objectors/applicants further averred that the firm of Omondi Abande & Co. Advocates never filed any notice of appointment on behalf of the objectors and they could not therefore purport to represent them.

5. The objectors averred that the petition was instituted by the petitioner, Masliana Ojwang’ Mbaja, who declared herself the sole beneficiary over the deceased’s estate and during that time the petitioner discovered that land parcel number Kisumu/Nyalunya/2307 had been subdivided into two parcels namely Kisumu/Nyalunya/3957 and Kisumu/Nyalunya/3958 and registered in the name of the 5th and 6th objectors and subsequently the petitioner filed an application dated 12th February 2014 which was subsequently amended on 23rd April 2014 in which she sought that a caveat be placed on the aforementioned land parcels, the cancellation of the sub-divided titles and cancellation of their titles.

6. It was averred that on the 23rd July 2014, the firm of MM Omondi & Co. Advocates filed a memorandum of appearance on behalf of the 5th and 6th objectors and that the subsequent litigation between the petitioner and 5th and 6th objectors was through the firms of Mwamu & Co. Advocates for the petitioner and MM Omondi & Co. Advocates for the 5th & 6th objectors and that the rest of the objectors were not represented.

7. The objectors averred that on the 26th October 2015, the objectors herein instructed the firm of Otieno Ragot & Co. Advocates who successfully petitioned for the grant issued to the petitioner to be revoked after which the said firm ceased acting for objectors on the 13th May 2019.

8. The objectors averred that they were not represented by any advocate until the 5th April 2022 when they again instructed the firm of Owiti, Otieno & Ragot when they filed an application dated 29th March 2022 seeking confirmation of grant issued jointly to the petitioner, 1st and 2nd objectors.

9. It was the objectors case that they had never been represented by any firm of advocates after the withdrawal of Otieno, Ragot & Co. Advocates and further that they had never been served with any notice of referral of this matter to mediation, notice of appointment of a mediator or any hearing or mention notice.

10. The objectors averred that the firm of Omondi Abande & Co. Advocates never filed any notice of appointment on behalf of the objectors and cannot therefore purport to represent them and subsequently the mediations settlement agreement dated 4. 11. 2020 ought to be set aside, vacated and or expunged.

11. In response, the petitioner swore an affidavit dated the 26th October 2022 in which she deposed that following the cancellations and subdivisions and changes done to the suit property by the 1st respondent, the court issued an order requiring the parties herein to go for mediation which all the parties herein did attend.

12. The petitioner further averred that at the time of the mediation, the land was in the name of Ngede Mbaja, the deceased, and so those who bought land from the objectors like the 6th Objector and Billy Ngonga could not have been parties to the mediation as they are not members of the family and further that it was a lie that they did not know about the negotiations because after the mediation settlement, on the 24th November 2020, the 1st to 4th objectors forged and took a fake confirmation of grant to Justice Ochieng.

13. It was the petitioner’s case that she subsequently commenced action to have the grant set aside and engaged the objector’s advocate, Omondi Abande & Co. Advocates who denied the grant emanating from his office.

14. The petitioner reiterated that the objectors had all along been aware of the mediation which they attended and gave authority of their lawyers Mr. Okoth and Mr. Omondi to sign the consent.

15. It was the petitioner’s case that the instant application was brought in bad faith and that she would suffer serious prejudice if the application was allowed.

16. The petitioner filed a supplementary affidavit sworn on the 10th July 2022 in which she stated that by a memorandum of appearance dated 22nd July 2014, the firm of Omondi Abande & Co. Advocates entered appearance for all the objectors and was thus deemed to be acting for them and further that on the 23rd July 2014 the said firm filed an affidavit on behalf of the 2nd objector.

17. The petitioner further relied on a letter dated 27th November 2018 in which Jude Ragot Advocate wrote to the objectors herein reminding them that they had retained the firm of Omondi Abande to represent their interest.

18. The parties filed submissions to dispose of the matter.

The Objector/Applicant’s Submissions 19. It was submitted that the objectors were only identified in applications dated 12. 2.2014 and 23. 4.2014 which were abandoned and never prosecuted and that the firm of MM Omondi & Co. Advocates never represented the 1st to the 4th objectors.

20. It was further submitted that on the 26th October 2015, the 1st to 6th Objectors instructed the firm of Otieno Ragot & Co. Advocates who ceased acting for the objectors vide their application dated 16th November 2018 and which was allowed on the 13th May 2019 and thus the objectors were not represented until the 5th April 2022 when they again instructed the firm of Owiti, Otieno & Ragot to act for them.

21. The objectors submitted that they had never been served with any notice of referral to mediation, notice of appointment of mediator and or any hearing notice. They submitted that Justus Okoth advocate only acted for the 5th and 6th objectors who were only parties to the applications dated 12. 2.2014 and 23. 4.2014 which applications were abandoned and never prosecuted.

22. It was submitted that Form 8 provided for in section 14 (1) of the Mediation (Pilot project) Rules 2015 was not signed by the parties herein as prescribed further evidencing that the agreement was reached at without knowledge of the objectors and as such the process that led to the mediation agreement dated 4. 11. 2020 was unfair, unconsciable and oppressive as the objectors never participated in it.

23. The objectors further submitted that only through a perusal of the mediation file that the attendance notes, notices and all information relating to the mediation process could be obtained and thus the court ought to order for the same.

The Petitioner’s/Respondent’s Submissions 24. It was submitted that this Honourable court issued an order directing the petitioner and objectors to go for mediation and as a result the mediation session was fixed for hearing on the 16th of October 2023 and a notice for mediation to both parties issued to that effect and further that mediation proceeded well culminating to an amicable settlement agreement dated 4/11/2020.

25. The petitioner submitted that the said resolution acted as an order from this honorable court and was entered into voluntarily by all parties including the Applicant and it was done in a transparent manner.

26. It was submitted that throughout the mediation proceedings, parties agreed on the pressing issues and that the parties voluntary executed terms of the mediation which were captured in a Mediation Settlement Agreement which was later adopted by the court and thus the conditions necessary to review a consent order; such as material non-disclosure, fraud/misrepresentation, mistake, undue influence or other supervening events must be present and of all which are necessary to invalidate the order.

27. The petitioner submitted that there was no indication whatsoever from the proceedings or by the conduct of the parties that the aspects of setting aside of a consent order had been demonstrated.

28. The petitioner further submitted that the objectors conduct in this matter clearly shows that they are litigants bent on mischief and were prepared to mislead the court at every opportune moment and thus the conduct of these objectors must prick the conscience of the Court to act against their repeat effort to mislead the Court as was held in the case of Gerald Mugiira v Salesio Elite [2022] eKLR.

29. It was submitted that by a memorandum of appearance dated 22nd July 2014 the firm of Omondi Abande and Company Advocates entered appearance for all the respondents. That he was therefore deemed to be acting for all the objectors jointly and severally with the firm of Otieno Ragot and Company Advocates and had ostensible authority to sign the mediation settlement agreement on their behalf.

30. The petitioner submitted that the objectors had not demonstrated the necessary elements as to why the instant mediation settlement agreement ought to be set aside.

Analysis & Determination 31. I have considered the foregoing averments as well as the submissions filed by both parties and I find the only issue for determination in this application as whether there exist enough grounds to set aside the mediation settlement agreement of 4th November, 2020.

32. The guiding principles used by courts in setting aside consent judgments or orders are well established. 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”

33. This position is clearly articulated 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, where Winn, LJ, opined:“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, and I see no suggestion here that any matter that occurred would justify the setting aside or rectification of this order looked at as a contract.”

34. In Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd[1982] KLR 485, 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.”

35. The consent herein was entered into on 4th November 2020 when the court adopted the mediation. The mediation settlement agreement was arrived at after the main suit was referred to mediation.

36. The Objectors herein have alleged that they were not represented in the mediation proceedings as no referral to mediation was served upon them and neither were the notice for the proceedings or hearing notices served upon them. It was the Objectors case that the advocate Justus Okoth who allegedly signed the agreement on their behalf did not represent them as they had no advocate at the time and that the said advocate had previously represented the 5th and 6th Objectors only in separate issues.

37. In response the petitioner stated that at all times the firm of Omondi Abande & Co. Advocates represented the objectors and as such the Mediation Settlement Agreement was valid

38. I have considered the Objectors’ allegations and I hold the view that no evidence whatsoever has been tendered before this court to substantiate such allegations. On the contrary, evidence adduced by the petitioner show that the firm of Omondi Abande & Co. Advocates had authority to act for the objectors.

39. The Objectors alleged that they remained unrepresented since 13th May 2019 until 5th April 2022 when the Objectors instructed the firm of Owiti, Otieno & Ragot to act for them in this matter.

40. The memorandum of appearance dated 22nd July 2014 was by the firm of MM Omondi & Co. Advocates and its stated that the firm was entering appearance for the beneficiaries therein who are the objectors herein.

41. The Objectors further claimed that they were not represented in the mediation proceedings and that the firm of MM Omondi & Co Advocates only represented the one Mathew Bernard Ngonga now deceased, and the 6th Objector. In letters dated 16th November 2018 and 27th November 2018, one Jude Ragot advocate, clearly refers to the fact that the objectors had retained the firm of Omondi Abande & Co advocates to represent the objectors.

42. It is trite law that he who alleges must prove. 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.”

43. 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.”

44. The purpose of this court is to determine whether the Mediation 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.

45. The Objectors further sought to move this court to call for the mediation file in question so as to ascertain on its own the elements of non-representation that would enable this court to grant the orders they seek. In my opinion this amounts to putting the cart before the house. The objectors ought to have moved this court with evidence of fraud or collusion on the part of the petitioner and the mediator and not to ask this court to look for evidence to support their claim. This is because this court remains an independent arbiter and a mediation file is never part of the proceedings of this court since the proceedings therein are confidential in nature and this court is not expected to descend into the arena of mediation process to look for evidence or reasons to set aside a mediation settlement agreement. See Rule 9 (3) of the Mediation Rules which provides inter alia that “(3) A mediation file shall be confidential and kept at the mediation registry separately from the court file.” In addition, Rule 24 (3) is clear that (3) Any communication during mediation including the mediator’s notes shall be confidential and shall not be admissible in evidence in any ongoing or subsequent legal proceedings.

46. Furthermore, Rule 39 of the Mediation Rules on Setting aside an order or decree arising out of a settlement agreement stipulate that:“9. (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 sub-rule (1) shall be supported by an affidavit detailing the grounds upon which the applicant intends to rely in setting aside the order or decree.”

47. In the instant case, there is no evidence that the applicant objectors herein first sought leave of court to apply for the setting aside of the Mediation Settlement Agreement or that they were granted such leave by this court. They simply filed an application for setting aside of the Mediation Settlement Agreement without first seeking and obtaining leave to apply.

48. without complying with the provisions of Section 39 (9) (1) and (2) of the Mediation Rules as above stated, this court would be devoid of any jurisdiction to entertain an application brought seeking to set aside the Mediation Settlement Agreement as is in the instant case.

49. The Mediation Settlement Agreement created a binding contractual arrangement and relationship amongst the parties thereto. More so, 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).”

50. In addition, the judgment founded on Mediation cannot be set aside. Neither can it be appealed against. The intention was to give finality to the Mediation process. The consent entered into herein created a contractual relationship between the parties who are bound by it.

51. In Kenya Commercial Finance Company Ltd vs Ngeny & Another (2002) 1 KLR, it was stated that:“The court will not interfere where parties have contracted on arms-length basis. However, by its equitable jurisdiction, this court will set aside any bargain which is harsh, unconscionable and oppressive or where having agreed to certain terms and conditions, thereafter imposes additional terms upon the other party. Equity can intervene to relieve that party of such conditions.”

52. Having carefully perused the application, I do not find any evidence of coercion, fraud, mistake or misrepresentation as a ground to have been advanced and proved by the applicants herein to warrant the interference with the order given by the court adopting the Mediation Settlement Agreement as the order of the court.

53. There was no proof of undue influence, coercion or intimidation of the parties in arriving at the Mediation Settlement Agreement. The Agreement is not ambiguous. The parties finally agreed on how to settle the dispute that confronted them, and had the advice of the counsel during the exercise. The Mediation Settlement Agreement created a binding contractual arrangement and relationship amongst the parties.

54. The Objectors have not proved the existence of any of the ingredients which would merit the setting aside of the mediation settlement agreement of 4th November, 2020. Reasons wherefore, it is my finding that the application dated 8th June 2022 is devoid of any merit and is consequently dismissed with an order that each party bear their own costs of the application.

55. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 20TH DAY OF NOVEMBER, 2023R.E. ABURILIJUDGE