https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9804

In re Estate of Arap Kirwa alias Kamulo Kirwa (Deceased) (Succession Appeal E031 of 2025) [2026] KEHC 9804 (KLR) (7 July 2026) (Judgment) Neutral citation: [2026] KEHC 9804 (KLR) Republic of Kenya In the High Court at Bomet Succession Appeal E031 of 2025 JK Ng'arng'ar, J July 7, 2026 IN THE MATTER OF THE ESTATE OF KAMULO ARAP KIRWA ALIAS KAMULO KIRWA (DECEASED) Between Philip Fred Rono Appellant and Sammy Kiplangat Rono Respondent Judgment 1.In this matter, a Grant was issued to the Appellant and the Respondent who were both Petitioners on 8th November 2022. The Appellant filed an Application for confirmation of the Grant on 18th April 2023 with his proposed mode of distribution. 2.The trial court ordered the parties to attend mediation sessions in an attempt to reach a consensus on the mode of distribution. The trial court adopted the Mediation Settlement Agreement as an order of the court on 30th January 2024. A Certificate of Confirmation of Grant was then issued on 1st February 2024. 3.The Appellant filed an Application dated 25th April 2024 where he sought to have the Mediation Settlement Agreement set aside. In its Ruling dated 19th March 2025, the trial court dismissed the Appellant’s Application. Being aggrieved with the said Ruling, the Appellant filed his Memorandum of Appeal dated 25th June 2025 in which they wanted the impugned Ruling set aside and the Grant revoked. 4.My work as the 1st appellate court is to re-evaluate and re-examine the evidence of the trial court and come to my own findings and conclusions. 5.I shall briefly summarize the parties’ cases in the trial court and their respective submissions in the present Appeal in the succeeding paragraphs. Notice of Motion Application dated 25th April 2024 6.The Appellant sought the following orders: -I.Spent.II.That the Honourable Court be pleased to review its decision to adopt the mediation settlement agreement dated 30th January 2024 and proceed to set aside both the adoption order and the subsequent certificate of confirmation of Grant dated 1st February 2024 and, in the alternative, this court proceeds to distribute the estate with strict adherence to the mode provided by section 40 of the Law of Succession Act.III.That the Honourable Court be pleased to make such further orders as it may deem just and expedient in the circumstances of this case. 7.Through his Supporting Affidavit dated 25th April 2024, the Appellant stated that the matter was referred to mediation twice and in the 2nd meeting, the Respondent and his siblings from their household did not turn up. That there was no consensus or settlement as to the mode of distribution. The Appellant further stated that the court was misled into adopting the consent dated 30th January 2024. 8.It was the Appellant’s case that his siblings from his household signed the Minutes of the proceedings on the understanding that there was no settlement on the issue of distribution. That the proceedings of 30th January 2024 were not attended by his advocate who had no notice of the mention date. It was the Appellant’s further case that the mediator had noted that no settlement had been reached between the parties. 9.Through his written submissions dated 13th October 2025, the Appellant submitted that when the matter was mentioned in the trial court on 30th January 2024, the Respondent’s advocate misled the court into believing that the matter had been resolved at mediation. That he took advantage of the absence of his (Appellant) counsel. The Appellant further submitted that this court should review its decision to adopt the mediation settlement agreement dated 30th January 2024 and set it aside. 10.It was the Appellant’s submission that this court should distribute the deceased’s estate in accordance to section 40 of the Law of Succession Act and distribute the estate equally between the two households. Response 11.Through his Replying Affidavit dated 20th August 2024, the Respondent stated that the matter was referred to mediation and his siblings attended. That there was consensus and it was evidenced by the mediation settlement agreement. 12.It was the Respondent’s case that before the Grant was confirmed, both the Appellant and Respondent were questioned in court and that his (Respondent) advocate did not mislead the court. It was the Respondent’s further case that distribution was resolved through mediation and the Appellant signed the Agreement to indicate that he was satisfied with the distribution of the deceased’s estate. 13.Through his written submissions dated 22nd September 2025, the Respondent submitted that consent orders were binding and relied on Flora Wasike vs Destimo Wamboko (1988) eKLR. That the Appellant willingly participated and could not run away from the agreement. The Respondent further submitted that re litigation was an abuse of the court process and should not be reopened without a lawful cause. He relied on Benjoh Amalgamated Ltd vs KCB (2014) eKLR. 14.It was the Respondent’s submission that the Appeal was an afterthought and was brought in bad faith. It was the Respondent’s further case that settlements under mediation are enforceable and relied on section 59B of the Civil Procedure Act. 15.I have gone through the Record of Appeal dated 24th July 2025, the Appellant’s written submissions dated 13th October 2025 and the Respondents’ written submissions dated 22nd September 2025. The sole issue for my determination was whether the Mediation Settlement Agreement 24th November 2023 should be set aside. 16.In this matter, as earlier stated, was resolved through a Mediation process. The Certificate of Confirmation of Grant dated 1st February 2024 was premised on the Mediation Settlement Agreement that was filed in this court on 24th November 2023 and adopted by the trial court on 30th January 2024. Once the Mediation Settlement Agreement was adopted, it became an order of this court that was valid and enforceable. 17.The Appellant’s main reason for wanting the Mediation Settlement Agreement set aside was that on the day it was adopted, the Respondent’s counsel misled the trial court into believing that there was a consensus on the mode of distribution. I have looked at the proceedings of 30th January 2024 when the consent was adopted by the trial court. The record indicated that both the Appellant and the Respondent were present in court and the Respondent was represented by counsel. The Appellant was however not represented by counsel on the said date. In my view, the absence of the Appellant’s advocate was an insufficient reason to invalidate a consent. At the very least, the Appellant would have raised a concern at that point before the consent was adopted. 18.Mediation Settlement Agreements are consensual in nature and the grounds for setting them aside are akin to the grounds of setting aside a contract. In re Estate of Anthony Njeru Karobia (Deceased) [2026] KEHC 1961 (KLR), the court held: -“In law a consent order binds all the parties thereto. A consent order may only be set aside if the grounds required to invalidate a contract are shown to exist i.e fraud, mistake, collusion or if the consent runs counter to Public Policy.In the case of Flora N. Wasike -Vs- Destimo Wamboko [1988] KLR the Court of Appeal stated thus: -“It is well settled law that a consent judgment or order has contractual effect and may only be set aside on grounds which justify setting aside a contract.”In Kenya Commercial Bank Ltd -Vs- Specialised Engineering Company Ltd [1982] KLR, the Court stated that“A consent order entered into by counsel 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 collision or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.”In Board of Trustees National Social Security Fund -Vs- Michael Mwalo [2015] eKLR the Court of Appeal held as follows: -“The judgment arose from a consent of the parties to the suit. The law pertaining to setting aside of consent judgments or consent order has been clearly stated. 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.” [Own emphasis]Finally, on this point the case of S.M.N -VS- Z.M.S [2017] eKLR summarised the case law and the grounds upon which a consent may be varied or set aside as follows: -i.Where the consent was obtained fraudulently.ii.Where there was use of collusion between affected parties in securing the consent.iii.Where the consent agreement runs contrary to public policy.iv.Where the consent is based on insufficient material facts.v.Where the consent was obtained on the basis of misapprehension or ignorance of material facts.vi.For any other sufficient reason.” 19.In regards to the setting aside of Mediation Settlement Agreements, Rule 39 of The Civil Procedure (Court-Annexed Mediation) Rules provides: -(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. (Emphasis mine) 20.It is clear from the above, that leave of the court must be sought by the Appellant before he filed his Application for the setting aside of a Mediation Settlement Agreement, as is the present case. I concur with the court in re Estate of Kipturgut Arap Cheruiyot (supra), where it was held: -“I have considered the respective cases of the parties and without delving further into whether the mediation settlement agreement is valid, I find that it is of utmost importance to consider whether the application to set aside the mediation agreement is competently before this court, Rule 39 of the Civil Procedure (Court Annexed Mediation) Rules, 2022 which is set out in mandatory terms provides that :- “No application for setting aside of an order or decree arising from a mediation settlement agreement shall be filed except with the leave of the court.An application for leave under sub rule (1) shall be supported by an affidavit detailing the grounds upon which the applicant intends to rely on in setting aside the order or decree.”I have carefully studied the contents in the file, I have not come across evidence demonstrating that the applicant first sought for leave of the court to apply for setting aside of the mediation settlement agreement. In the absence of leave by the applicant to file the instant application, I find that this court lacks jurisdiction to entertain the application which is incompetently before it and on this premise the preliminary objection succeeds.” 21.Similarly, in Too & another v Too & 15 others [2026] KEHC 2508 (KLR), the court held: -“The above Rules therefore clearly envision the seeking of leave to set aside as a separate stage from the filing of the substantive Application. The Rules also envision setting aside of the order arising from the Settlement Agreement, and not the Settlement Agreement itself……” 22.I have keenly gone through the record and there was no evidence that the Appellant sought the court’s leave before filing his Application for review and setting aside the Mediation Agreement. This meant that the Appellant’s Application failed. I have no reason to interfere with the decision of the trial court. 23.In the end, the Appeal dated 25th June 2025 has no merit and is dismissed. The costs as awarded by the trial court are maintained while each party shall bear their own costs in the appeal. JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 7TH DAY OF JULY, 2026..................................HON. JULIUS K. NG’ARNG’ARJUDGEJudgement delivered in the presence of:Siele/Susan (Court Assistants)Appellant:absentRespondent:present