Ombok & 2 others v Ochieng (Enviromental and Land Originating Summons E001 of 2024) [2026] KEELC 5027 (KLR) (15 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMABAY** **ELC (OS) NO. E001 OF 2024** BENARD OMBOK.................................................................1ST APPLICANT CONSOLATA AKUMU.......................................................2ND APPLICANT CONSOLATA ADERA.........................................................3RDAPPLICANT BENARD OGWENO......................................................4TH APPLICANT VERSUS ERICK OMONDI OCHIENG...............................................RESPONDENT **RULING** 1. The Notice of Motion filed under certificate of urgency dated 4th June 2026 filed by the Applicants, pursuant to Articles 25(c), 40, 47, 50 and 159 of the Constitution, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, the Court Annexed Mediation Rules, and all enabling provisions of the law for orders that; 2. Spent. 3. Spent. 4. Pending the inter partes hearing of this Application, there be stay of implementation, execution, enforcement and/or effect of the Mediation Agreement dated 20th November 2025 and adopted as an order of Court on 19th January 2026. 5. Pending the inter parties hearing of this Application, there be a stay of all actions, dealings, claims, processing, approvals and/or payments founded upon or arising from the Mediation Agreement dated 20th November 2025. (Spent). 6. Pending the inter parties hearing of this Application, an Order be and is hereby issued restraining the Respondent, whether by himself, his agents, servants, representatives and/or any person acting under his authority, from receiving, claiming, negotiating, processing, withdrawing or otherwise dealing with any compensation monies arising from the compulsory acquisition of the suit property KANYANDA /KANYANGO/9923 AND KANYADA /KANYAGO /9924 subdivided into KANYADA/KANYANGO./4713 7. That Pending the inter parties hearing of this Application, an Order be and is hereby issued directing the Kenya National Highways Authority , the National Land Commission or any other Government Ministry ,Department ,Agency , Authority or body involved in the Compulsory Acquistion process affecting the suit property that the respondent has proceeded to subdivide from KANYADA /KANYANGO/4713 to KANYADA /KONYANGO/9923 and KANYANDA /KANYANGO/9924 and to halt , suspense and or stay the processing of payment relating thereto. 8. In the alternative to Prayer 6 above, pending the hearing and determination of the Originating Summons herein, any compensation monies due and payable respect of the suit property be deposited in court, pending further orders of this Court. 9. That upon interparties of this application the orders granted under prayer 3,4,5, 6 and or 7 above confirmed and remain in force pending the hearing and determination of this application 10. The application was supported by the 1st applicant’s affidavit and on the grounds that on the 19th January 2026, the Court made an order herein adopting the Mediation Settlement Agreement dated 20th November 2025. The 1st Applicant averred that the said Mediation Settlement Agreement was entered into and subsequently adopted by the court without the participation, authority and consent of all parties to this suit. 11. The 1st Applicant deposed that being a substantive party to the proceedings and whose rights are directly affected by the dispute, was neither listed as a party to the Mediation Agreement nor did he execute or consent to the same. Hence the impugned Mediation Agreement lacks the requisite consensus necessary to bind all parties to the proceedings. 12. The 1st Applicant further states that the adoption of the Mediation Agreement has occasioned substantial prejudice to the Applicants by purporting to determine disputed proprietary rights without the participation of all affected parties. Also, notes that the suit property is currently undergoing compulsory acquisition. 13. The application was opposed by the Respondent, Erick Omondi Ochieng, he relied on his affidavit sworn on 2nd July 2026 in which he averred that the application to set aside the mediation has been made in violation of rule 39 of the Civil Procedure (Court Annexed Mediation) Rules, 2022 as it was not preceded with an application for leave to set aside the mediation order or decree which is a mandatory jurisdictional issue. 14. The respondent further stated that the applicant has not enjoined the Kenya National Highway Authority and the National Land Commission as parties to the application to seek orders against them. That if the applicant has issues with the compulsory acquisition of the land, he should move the proper statutory bodies established for adjudication of such disputes being the National Land Commission and if dissatisfied move the Land Acquisition Tribunal. 15. The respondent also averred that the applicant cannot purport to move the court on behalf of the 2nd, 3rd and 4th applicants who have no qualms with the mediation settlement in order to undo the entire mediation settlement. 16. In the premises, the respondent urged the Court to dismiss the application contending that the applicant had failed to present proper grounds to warrant the setting aside the order of 19th January 2026. 17. The application was canvassed by way of written submissions, pursuant to the directions given herein on 12th June 2026. He reiterated the factual basis of her application and proposed for determination the question whether the Mediation Settlement Agreement should be set aside. 18. The respondent relied on Rule 39 of the Civil Procedure (Court Annexed Mediation) Rules, 2022 (hereinafter, “the Mediation Rules) and the case of Mbaja v Ouko & 5 others (2023) KEHC 25636 (KLR) (20 November 2023) (Ruling), Re. Estate of Ismael Odhiambo Owalla (Deceased) (2026) KEHC 6678 (KLR) and urged the court to dismiss the application as the due process was not followed. 19. The Applicants on the other hand relied on Section 80 of the Civil Procedure Act, Order 1 Rule 10(2) of the Civil Procedure Rules, Order 45 Rule 1 of the Civil Procedure Rules, Rule 2 of the Court-annexed Mediation Rules, Brooke Bond Liebig (T) Ltd v Mallya (1975) EA 266. The Applicant laments that the Respondent’s principal argument is that the Applicants ought to have sought leave of the Court before filing the present application pursuant to Rule 39 of the Court-Annexed Mediation Rules, 2022. They further stated that they (Applicants) are not before this Court merely seeking to set aside a mediation settlement under Rule 39. The application challenges the validity of an Order adopted on 19th January 2026 on the basis that it was founded upon a purported mediation agreement that did not involve one of the principal parties to the suit. They consequently prayed for the application to be allowed with costs. 20. I have given careful consideration to the application, its Supporting Affidavit and the response thereto by the respondent. Also, I have given due consideration to the written submissions filed by counsel for the parties and the authorities relied on by them. 21. Most importantly, it cannot be overemphasized that mediation is one of the alternative dispute resolution mechanisms recognized under Article 159(2)(c) of the Constitution. By its very nature, mediation is a party-driven process intended to facilitate an amicable and final resolution of disputes. Consequently, settlement agreements reached through mediation are not intended to be the subject of appeals or to be set aside, save in exceptional circumstances recognized by law. It is for this reason that Section 59B (4) and (5) of the Civil Procedure Act provides as follows: “(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). 1. This court is aware of the legal position which dictates that upon adoption, a mediation settlement agreement ought to be treated as a consent order, the threshold for setting aside consent orders was discussed in the case of [*Kenya Commercial Bank Ltd v Specialized Engineering Company Ltd*](https://new.kenyalaw.org/akn/ke/judgment/kehc/1980/11) (1980) eKLR wherein it was held that:- ***“… prima facie any order made in the presence and with the consent of counsel is binding on all parties to the proceedings and cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the court or if the consent was given without sufficient materials or in misapprehension or ignorance of material facts in general for a reason which would enable the court to set aside an agreement.”*** 2. In furtherance of that position, Rule 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022 provides as follows: 3. 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. 4. 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. 5. The following shall constitute the grounds upon which an application to set aside an order or decree arising from a mediation settlement agreement— 6. 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; 7. 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; 8. 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; 9. 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 10. where the settlement agreement is invalid under Kenyan or international law, or is or has become incapable of enforcement under Kenyan law. 11. 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 sub-rule (3). 12. In the case of ***Mbaja v Ouko & 5 Others* (Succession Cause No. 2 of 2009) [2023] KEHC 25636 (KLR) (Ruling, 20 November 2023**), **Aburili J.** rightly observed, with which I respectfully and wholly agree, as follows; ***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***](https://kenyalaw.org/akn/ke/act/1924/3)***:“(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).”*** 1. In light of the foregoing provision, the first issue for determination is whether the Applicant sought and obtained leave of the Court before filing the present application. A perusal of the court record reveals no indication that the Applicant complied with this mandatory procedural requirement. Given the authoritative nature of the provision, the inevitable conclusion is that the application was prematurely instituted. This court lacks jurisdiction to entertain the application as it is incompetently before it. 2. Counsel for the applicant argues that jurisdiction of the court to curtail its own orders cannot by subsidiary legislation and that order 39 cannot be construed to extinguish statutory and inherent jurisdiction where sufficient reason has been demonstrated. 3. In determining the P. O I shall consider whether the word ‘’shall’ is mandatory or directory.A Court of justice are endowed with the duty of trying to decipher the real intention of the legislature by carefully attending to the whole scope of the statute. 4. In India, the Supreme Court of India has pointed out on many occasions that the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature, and not upon the language in which the intent is clothed. To ascertain the meaning and intention of the Legislature must carefully look at its design and the consequences which would follow from construing it in one way or the other. 5. The [*Longman Dictionary of the English Language*](https://www.worldcat.org/title/longman-dictionary-of-the-english-language/oclc/11918106) states that "shall" is used to express a command or exhortation or what is legally mandatory. [ 6. The Black’s Law Dictionary, the term “shall” is extensively defined as follows: **“As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary significance, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning: denoting obligation. It has a peremptory meaning and is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears.”** 1. In the case **of *Subrata v. Union of India*** *(AIR 1986 Cal 198)***,** the court Supreme Court held as follows: **‘’A provision in a statute is mandatory if the omission to follow it renders the proceeding to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceeding, and a statute may be mandatory in some respects and directory in others.’’** 1. Justice Mativo in the case of Equity Group Holdings Limited v Commissioner of Domestic Taxes [2021] KEHC 25 (KLR) held thus: **‘’The general rule is that an absolute enactment must be obeyed, or, fulfilled substantially. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance.’’** 1. It is therefore rational to say that, cases are won or lost based on the correct or incorrect interpretation of the applicable laws. This is not to say that, other legal factors are insignificant in influencing courts’ decisions 2. I therefore find no difficulties in giving the exact meaning to the word “**shall** “which is couched in mandatory words and thereof compliance is key. Failure to do so renders an application bad in law. 3. In the upshot, the Notice of Motion dated 8th June, 2026 being premature, is hereby struck out with no order as to costs. 4. Each party has to bear their own costs. Ruling dated and delivered virtually at Homa Bay this 15th day of July 2026. **In the presence of;** 1. Otieno Obiero for the Applicant- Present 2. Mogambi for the Respondent- Present 3. C/A Bosbori. JOHN WALTER WANYONYI JUDGE