RULING (REFERRING A MATTER TO COURT-ANNEXED MEDIATION)
(1) The overriding objective (otherwise popularly known as the oxygen principle) of the Civil Procedure Act (hereinafter “CPA”) and the Civil Procedure Rules (hereinafter “CPR”); the Environment and Land Court Act (hereinafter “ELC Act”); Rules made under both the CPA and ELC Act; The Practice Directions on Standardization of Practice and Procedures in the Environment and Land Court, 2025 (hereinafter “PDELC”); is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the said Acts. See section 1A(1) of the CPA; section 3(1) of the ELC Act; and Practice Direction 4 of the PDELC.
(2) The framework for giving effect to the oxygen principle resides in the double-edged and symmetrical obligations reposed in both the Court and parties. On one hand, parties and their advocates, if any, are obligated to assist the Court to further the said oxygen principle by inter alia, participating in the processes of the Court and complying with the directions and orders of the Court. See sections 1A(3) of the CPA and 3(3) of the ELC Act. On the other hand, in striking a delicate balance towards attainment of the said oxygen principle, the Court is obligated to progress all matters committed to it for resolution for the purpose of attaining the just determination; efficient disposal; efficient use of the available judicial and administrative resources; the timely disposal thereof to keep in check inter alia the cost element of suits; leveraging suitable technology; and serving the ends of justice in this regard. See section 1B of the CPA; and Practice Direction 23(m) of the PDELC.
(3) Accordingly, whenever a Court is construing any of the provisions of the CPA; ELC Act and Rules under both Acts, the Court is enjoined to always train its eye on giving effect to the said oxygen principle. See section 1A (2) of the CPA; section 3(2) of the ELC Act; and Practice Directions 4 & 23(m) of the PDELC.
(4) The Constitution of Kenya and The Social Transformation Through Access to Justice Vision of the Chief Justice (hereinafter “STAJ”) desires a Judiciary that enforces corrective, transformative and justice-seeking reliefs. The Constitution thus recognizes the principle that Judges are not merely dispute resolvers but custodians of justice with the attendant duty to train their eyes on people-centred justice.
(5) In this connection, through the lens of multi-door approach to justice, the said people-centered justice can as well be served through ADR. It will be recalled that STAJ and the Performance Management and Measurement Understanding (hereinafter “PMMU”) executed by this Court, anticipates determination of this suit within one year from the date of filing. Parties will certainly concur that this timeline is by all standards ambitious. This ambitious timeline translates that all parties must work round the clock, within ambitious and strict short timelines to be set by this Court and in accordance with the Overriding Objective of the civil procedure rules under sections 1A and 1B of the CPA and section 3 of the ELC Act (to facilitate just, expeditious, proportionate, and affordable resolution of disputes). Each party and Advocate must thus discharge their obligation to assist this Court achieve the said Oxygen Principle.
(6) Beyond Articles 60(1)(g) and 159(2)(c) of the Constitution, ADR is firmly erected on the firm foundation of Article 1 of the Constitution. Article 1 of the Constitution recognizes constituent power (that the people of Kenya can exercise their sovereign power directly or indirectly).
(7) And so, provided that ADR is not applied in a manner that contravenes the Bill of Rights; repugnant to justice and morality; or results in outcomes that are repugnant to justice or morality; or is inconsistent with this Constitution or any written law, Article 159(2)(c) of the Constitution - which provides that “(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)” - enjoins this Court to promote ADR.
(8) Special ADR attention is paid to land disputes through Article 60(1)(g) of the Constitution which makes provision for principles of land administration and management as follows: “(g) encouragement of communities to settle land disputes through recognised local community initiatives consistent with this Constitution.”
(9) Further, Practice Direction 7 of the PDELC obligates the Court to promote AJS. It further encourages parties to as far as possible, consider AJS. In addition, this Court may exercise its discretionary power to refer a matter to ADR under Practice Direction 23(k) of the PDELC. Besides, at any stage, the Court may refer a matter to ADR in accord with Practice Direction 25(f) of the PDELC.
(10) How then is ADR invoked? The law provides that the Court may either on the motion of the parties or on its own motion where it deems it appropriate to do so or where the law so requires, direct that any dispute committed to the Court for resolution be referred to ADR. See section 59B of the CPA which provides that “(1) The Court may — (a) on the request of the parties concerned; or (b) where it deems it appropriate to do so; or (c) where the law so requires, direct that any dispute presented before it be referred to mediation.” Beyond mediation, the Court may direct that a suit be referred to any other method of ADR where the parties agree or the Court considers the case suitable for such referral. See section 59C of the CPA which provides that “(1) A suit may be referred to any other method of dispute resolution where the parties agree or the Court considers the case suitable for such referral.”
(11) In discharging the obligation of this Court of giving effect to the said oxygen principle pursuant to sections 1A (2) of the CPA and 3(2) of the ELC Act; and in giving further effect to the constitutional principle which governs exercise of judicial authority in relation to alternative mechanisms of dispute resolution (hereinafter “ADR”); and pursuant to Articles 1, 159(2)(c), and 60(1)(g) of the Constitution; sections 59B and 59C of the CPA; Order 11, Rule 3 (a) - (c) & Rule 3 (8)(b) of the CPR; and Practice Directions 7, 23(k) & 25(f) of the PDELC; and having found no compelling reasons as contemplated by Article 159(3) of the Constitution which would militate against taking this pathway (and specifically that the said alternatives shall be used in a way that contravenes the Bill of Rights; is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or is inconsistent with this Constitution or any written law); and the screening criteria under Rule 7 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, this Court found this matter appropriate to direct parties that this dispute be referred to ADR.
(12) In the Order dated 23rd June 2026, this Court encouraged parties to consider the most suitable ADR mechanism to resolve this dispute in order to achieve substantive justice so dearly desired by Article 159(2)(d) of the Constitution.
(13) In line with the directions of this Court to consider ADR on both the Interlocutory Application and Petition, parties agreed to attempt Court-Annexed Mediation.
(14) Consequently, invoking the powers reposed upon this Court by Article 159(2)(c) of the Constitution; section 59B(1)(b) of the CPA; and Rule 5 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, this Court directs that:
(a) This file be placed before the Mediation Deputy Registrar not later than the 15th day of July 2026.
(b) The Mediation Deputy Registrar shall open a Mediation File and appoint an Accredited Mediator, who shall be an Advocate of the High Court with sufficient experience to help parties in this matter to resolve the dispute, due consideration paid to the nature of this matter, the number of parties involved and the complexity thereof, not later than the 22nd day of July 2026.
(c) In accordance with Rules 37(2) read with Rule 30 (c) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, the Mediator is directed to conclude the mediation proceedings and file a Report within sixty (60) days from the date he/she was appointed, unless an extension is sought and secured from this Court in accordance with Rule 30(c) read with Rule 37(3), (4) & (7) and read further with Rule 55 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022.
(d) There will be a mention on the 28th day of September 2026 for further directions of this Court.
Delivered, Signed and Dated at Eldoret ELC Open Court this 13th day of July, 2026
C.N. Ondieki
Judge
In the presence of:
Advocate for the Petitioners/Applicants: Mr. Martim
Advocate for the 1st Respondent: Mr. Orwe
Advocate for the 2nd and 3rd Respondents: Mr. Nyambegera
4th Respondent: No Appearance
Advocate for the 5th and 6th Respondents: Ms. Rop
Court Assistant: Ms. Juma