Okongo v Odoro & 3 others (Land Case Appeal E003 of 2023) [2026] KEELC 3302 (KLR) (5 May 2026) (Ruling)

Okongo v Odoro & 3 others (Land Case Appeal E003 of 2023) [2026] KEELC 3302 (KLR) (5 May 2026) (Ruling) Neutral citation: [2026] KEELC 3302 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Land Case Appeal E003 of 2023 FO Nyagaka, J May 5, 2026 Between Samuel Opiyo Okongo Applicant and Pius Owino Odoro & 3 others & 3 others Respondent Ruling 1.The Applicant filed the instant application dated 16th September, 2025 seeking the following orders:1.That the Honourable court be pleased to set aside the mediation settlement agreement entered dated 3rd July, 2025 and set aside all consequential orders thereon.2.That the Honourable court be pleased to order for another mediation session or allow the matter to proceed from where it left.3.THAT the costs of this application be provided for. 2.The application was supported by the grounds set out and the affidavit of Samuel Opiyo Okongo sworn on the same day as the application. He stated that prior to the present matter being referred to mediation, the dispute was resolved by the Land Disputes Tribunal in 2009 and a decree issued vide claim No. 172 of 2007. 3.He further stated that he had insisted during the mediation process that Clause 3 of the decree dated 21st July, 2009 be adopted to the latter. 4.He stated that everyone agreed and that he only later learnt that the Mediator partly indicated their agreement on the report but left out the wordings as captured under Clause 3. He added that the same resulted into misrepresentation of their agreement. 5.He went on to state that if the report remains as it is, he stands to lose land that had already been awarded to him by the Land Disputes Tribunal making the decree dated 21st July, 2009 a nullity 6.He stated that it was in the interest of justice that the court allows his application as prayed. Response 7.The 1st Respondent filed his Replying Affidavit where he averred that the application was an abuse of the court process. He averred that they had preferred an appeal where the Judge referred the matter to court annexed mediation. 8.He further averred that parties attended the mediation session and amicably reached a consensus and the same was adopted as an order of the court. 9.He averred that both the Applicant and Respondents voluntarily executed the terms of the mediation agreement. 10.He further averred that the consent order was binding on all parties and cannot be set aside or varied unless it is proved that it was obtained through fraud, collusion or misrepresentation of facts. 11.He also averred that there was no indication from the Applicant or Respondents that there were reasons to set aside the consent order. 12.He went on to aver that no evidence has been tendered to the effect that there was existence of any of the ingredients that would warrant the setting aside of the consent orders. 13.He stated that the present application had been brought in bad faith and ought to be dismissed. Submissions 14.Counsel for the Respondent filed his submissions dated 15th December, 2025 where he identified two issues for determination. The first issue was whether the leave should be granted to the applicant to file an application to set aside the mediation settlement agreement dated 3rd July, 2025. 15.While submitting in the negative, he relied on the cases of Flora Wasike V Destimo Wamboko (1988) eKLR and Kenya Commercial Bank Ltd V Specialized Engineering Co. Ltd (1982) KLR 485. 16.It was his submission that the consent order was binding on all parties to the proceedings and cannot be set aside unless it is proved that it was obtained through fraud, collusion or by an agreement contrary to the court’s policy or without sufficient material. 17.He further submitted that the Applicant voluntarily executed the terms of the mediation and the same captured in the settlement agreement and thereafter adopted as the court’s order. 18.He also submitted that the Applicant failed to establish the conditions necessary to set aside the consent order. He added that there was no evidence from the proceedings or by conduct of the parties that aspects of setting aside of a consent order had been demonstrated. 19.The second issue was on which party is to bear the costs of the application. Counsel relied on Section 27 of the Civil Procedure Act and submitted that costs follow the event. Analysis and determination 20.This court has considered the application and is of the view that the main issue for determination is whether this court should set aside the mediation settlement agreement entered dated 3rd July, 2025. 21.It is trite law that a consent judgment or order has the effect of a contract and is binding on parties, and can only be set aside on grounds which justify setting aside of a contract. In the case of Brooke Bond Liebig Limited v Mallya 1975 E.A 266 the court stated that:“A consent order cannot be varied or discharged unless obtained by fraud or collision or by an agreement contrary to the policy of the court or if the consent was given without sufficient material facts or in apprehension or in ignorance of material facts or in general for a reason which would enable the court to set aside an agreement”. 22.The Board of Trustees National Social Security Fund v Michael Mwalo [2015] KECA 782 (KLR) the court held 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.” 23.Similarly, Rule 39(3) The Civil Procedure (Court-Annexed Mediation) Rules Legal Notice 145 of 2022 provides as follows:(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; ore.where the settlement agreement is invalid under Kenyan or international law, or is or has become incapable of enforcement under Kenyan law. 24.The Applicant claims that indeed both parties agreed on the terms of settlement but that the mediator failed to capture the contents of Clause 3 of the settlement agreement. It was the Applicant’s case that the mediation report ended up being a misrepresentation of their agreement and ought to be set aside. 25.The Respondent on the other hand contends that there was no evidence by the Applicant that he had met the conditions to warrant the setting aside of the consent order. 26.It is not in dispute that both parties appeared before the Mediator on 3rd July, 2025 and held discussions the way forward, and when the Mediation Settlement Agreement was arrived at as between them. Further, it is also not in dispute that both the Applicant and Respondent executed the Mediation Agreement thereby confirming and agreeing to the terms as provided in it. 27.This court has keenly perused the court record. It is a fact that the mediation report only confirmed the contents of the settlement agreement by the parties and no more. The agreement did not vary the terms as the parties agreed. 28.In view of the above, it is this court’s view that there is no misrepresentation and therefore there is not basis upon which the Applicant can set aside the mediation settlement agreement. The upshot of the above is that the application is dismissed with costs. 29.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 05TH DAY OF MAY 2026.HON. DR. IUR NYAGAKAJUDGEIn the presence ofMs. Oyala Advocate for the RespondentNo appearance for the Applicant(though the ruling date was taken by consent)