CORAM: In the presence of: Justice R. Nyakundi
M/S A. A. Mudanya & Co. Advocates
M/S Chimei & Malenya Company Advocates:
INTRODUCTION
1. This is a first appeal from the Ruling of Hon. J. A. Agonda, Senior Principal Magistrate, dated 16th October 2025 in Vihiga Chief Magistrate’s Court Succession Cause No. E207 of 2023, being the succession cause in respect of the estate of the late William Kavayi Alumasa, who died intestate on 24th March 2009. The principal, and for practical purposes the only, asset of the estate is land parcel L.R.
No. Kakamega/Mbale/916.
2. The 1st and 2nd Appellants are the son and daughter of the deceased. The Respondent is the deceased’s sister and, together with the 1st Appellant, a co-administrator of the estate. The contest below was, in substance, between the deceased’s children on the one hand and the deceased’s siblings and their families on the other, the latter asserting that the deceased held the suit parcel in trust for the wider family as first-born son, and the former asserting that the parcel belonged to the deceased absolutely and devolves upon his children alone under Section 38 of the Law of Succession Act.
3. Both parties filed written submissions on the appeal the Appellants’ dated 14th July 2026 and the Respondent’s dated 23rd July 2026 which canvass at length the questions of customary trust, of who qualifies as a dependant under Section 29 of the Act, and of the correct mode of distribution. For the reasons which follow, this Court does not reach any of those questions.
THE MATTER, WHICH DISPOSES OF THIS APPEAL
4. On a perusal of the record, the Court’s attention was drawn to a matter which neither party addressed in its submissions and which, in this Court’s view, must be disposed of before any question of distribution can arise. It is this: there exists on the Court record a Settlement Agreement dated and executed on 5th November 2025 in Court Annexed Mediation Cause No. VIH/MED/098/2025 (arising out of Vihiga Succession Cause No. E207 of 2023), bearing the stamp of the Deputy Registrar, Court Annexed Mediation Registry, Vihiga, and signed by all the parties to the succession cause, by their family representatives, by four witnesses and by the mediator.
5. The existence of that agreement is not a matter of speculation or of after-thought. It is the direct and intended product of the very Ruling now under appeal. At page 40 of the Supplementary Record of Appeal the learned trial magistrate, having invoked Article 159(2)(c) of the Constitution, stated in terms that she had urged the parties to reconcile and that “if they reach an agreement through mediation process, this Court would adopt mediation report to settle this matter”, adding that “in the event that parties agree and they record consent on the mode of distribution before a mediator, the Court has no choice but to adopt the consent and make it an order of the Court”. By Order
1 of the Ruling the learned magistrate formally referred the matter to Court annexed mediation to resolve the issue of the mode of distribution, by Order 2 directed that the mediation report be filed within fourteen days, and by Order 6 fixed a mention on 11th November 2025 for further directions.
6. The parties complied. Mediation was conducted under the Court annexed scheme and a settlement was reached and reduced into writing on 5th November 2025, that is to say within three weeks of the reference and before the mention date the trial Court had itself appointed. What is more, on the Respondent’s own account of the record the Ruling of 16th October 2025 was not delivered until 4th December 2025, which places the settlement squarely before the date of delivery.
7. The terms of the settlement may be shortly stated. The whole of L.R. No. Kakamega/Mbale/916 is to be subdivided into four portions: Portion 1, the portion on which Aggrey Mudaki has built, to be apportioned to him; Portion 2, the portion holding the family graves, to be held in trust jointly by Francis Ukiru and the 1st Appellant, Benard Muyenzi; Portion 3, a quarter of an acre, to be sold to defray administrative costs; and Portion 4, the remainder, to be subdivided equally among six units, namely the family of the late William Kavai Alumasa (represented by the 1st Appellant), the families of the late
Torokasi Kazira, of Elizabeth Omega, of the late Dorika Minayo Alumasa and of the late Rachel Mulengeka, and the Respondent. Clause B appoints the Respondent and the 1st Appellant as administrators. Clause C records that the parties understand fully that the agreement is binding and is the final say on the subdivision of the estate. Clause D records that the parties signed willingly and “without force, pressure or coercion”. Both Appellants signed.
8. Notwithstanding all of this, the record discloses no ruling, no order, no minute and no reasoning of any kind by which the trial Court dealt with that agreement. It was neither adopted nor rejected. It was not referred to the parties for comment. No reason for passing it over appears anywhere on the record, and this Court, having searched the record, is unable to understand why the agreement was not taken up. Instead the succession cause proceeded, and the parties have come before this Court on appeal arguing the merits of a distribution dispute which, on the face of the record, they had themselves already settled.
ISSUE FOR DETERMINATION
9. The single issue this Court determines is therefore: what is the status and effect of the Settlement Agreement dated 5th November 2025 in Court Annexed Mediation Cause No. VIH/MED/098/2025, and what consequential orders ought this Court to make?
10. This Court is alive to its duty as a first appellate Court to reconsider the evidence, evaluate it and draw its own conclusions (Selle v Associated Motor Boat Co. Ltd [1968] EA 123). That duty does not, however, require or entitle the Court to pronounce upon substantive questions which may prove not to arise at all. If the settlement stands, the questions of customary trust, of dependency under Section 29 and of the arithmetic of distribution fall away, for the parties will have answered them for themselves. It would be improper, and would risk prejudicing the parties before the trial Court, for this Court to express concluded views on those matters at this stage. They are accordingly left open.
THE APPLICABLE LAW
11. Article 159(2)(c) of the Constitution requires that, in exercising judicial authority, the Courts shall be guided by the principle that alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms, shall be promoted, subject only to Article 159(3). Article 159(2)(d) requires that justice be administered without undue regard
to procedural technicalities. These are not decorative provisions. They bind the Courts.
12. Sections 59A to 59D of the Civil Procedure Act, Cap 21, give that principle statutory form. Section 59B empowers the Court to refer a dispute to mediation. Critically, Section 59B(4) provides that an agreement between the parties to a dispute reached as a result of a mediation process shall be recorded in writing and registered with the Court giving rise to the mediation, and shall thereupon be enforceable as if it were a judgment of that Court. Section 59B(5) provides that no appeal shall lie against such an agreement. The Civil Procedure (Court-Annexed Mediation) Rules, 2022 carry the scheme into effect and provide for the filing of the mediation outcome with the Registrar and for the adoption of a settlement by the Court.
13. The statutory language is emphatic. A registered mediated settlement is not a proposal, a recommendation or an aid to the Court’s discretion. It has the quality of a judgment. It follows that it can no more be ignored than a judgment can be ignored, and that it can be displaced only in the manner in which a judgment or a consent may be displaced.
14. As to that, the law is long settled. A consent or compromise recorded in Court may be interfered with only on grounds which would suffice to set aside a contract, or where it was entered into without sufficient material facts, in misapprehension or ignorance of material facts, or in contravention of the policy of the Court: Hirani v Kassam (1952) 19 EACA 131; Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266; Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR
485; and Flora N. Wasike v Destimo Wamboko [1988] eKLR, where the Court of Appeal held that a consent judgment may only be set aside on grounds which would justify the setting aside of a contract, or on the ground that it was given without sufficient material facts or in misapprehension or ignorance of such facts.
15. Two further provisions bear on the disposition. Section 71 of the Law of Succession Act, Cap 160, requires the Court, on an application for confirmation of grant, to satisfy itself as to the identity of all persons beneficially entitled and as to the respective shares before confirming the grant. Section 78 of the Civil Procedure Act confers upon this Court, sitting on appeal, power not only to determine a case finally but also to remand it, to frame issues and to give such directions as the justice of the case requires. Section 47 and Section 50 of the Law of Succession Act, read with Rule 63 of the Probate and Administration Rules, make the civil appellate procedure applicable to appeals of this character.
ANALYSIS AND DETERMINATION
16. Applying that law to this record, the following propositions appear to this Court to be unanswerable.
17. First, the mediation was not a private or extra-curial arrangement. It was a Court annexed mediation, conducted under a reference ordered by the trial Court itself, registered under its own mediation number and lodged with the Deputy Registrar of the Court Annexed Mediation Registry at Vihiga. It falls squarely within Section 59B of the Civil Procedure Act.
18. Secondly, the agreement is regular on its face. It identifies the estate and the cause. It is signed by every party to the succession cause, including both Appellants, and by the representatives of each of the six family units. It is witnessed by four persons and bears the mediator’s signature. Clause D records expressly that it was signed willingly and without force, pressure or coercion. No party has at any time alleged, whether below or before this Court, that any signature was procured by fraud, duress, mistake or misrepresentation.
19. Thirdly, the trial Court had bound itself, in the clearest language, to adopt precisely such an agreement if one were reached. Having invited the parties to mediate, having ordered them to do so, and having told them that a recorded consent would leave the Court “no choice but to adopt” it, the Court could not thereafter simply pass over the fruit of that direction in silence. Parties who are ordered to mediate, and who mediate successfully, are entitled to have the outcome of that exercise judicially determined one way or the other. To leave it unaddressed is to defeat the reference and, with it, the constitutional imperative in Article 159(2)(c).
20. Fourthly, and this is the heart of the matter, a settlement agreement of this character cannot be wished away at will. It does not lapse because a party has had second thoughts, nor because it has become inconvenient, nor because the litigation has since travelled elsewhere. It is on the record, and it remains on the record until it is taken off by a judicial act. The only route by which a party dissatisfied with it may escape it is to move the Court by a proper application, on notice, seeking that it be set aside or expunged, and to establish one of the recognized grounds identified in Hirani, Brooke Bond and Flora Wasike. No such application has ever been made. There has been no cognizable litigation on the point at all. The agreement therefore stands unimpeached.
21. Fifthly, the conduct of the parties since 5th November 2025 does not assist them. Both sides have prosecuted and resisted this appeal on the footing that the mode of distribution remains at large, and neither raised the agreement in submissions. Silence, however, is not a mode of rescission. A party who has signed a mediated settlement and wishes to be released from it must say so openly and seek the Court’s leave; he may not achieve the same result by declining to mention it and inviting the Court to decide the dispute afresh.
22. It follows that the mode of distribution of this estate could not properly be determined, and cannot now properly be determined, without the status of the Settlement Agreement of 5th November
2025 first being resolved. To the extent that the succession cause has proceeded past that agreement without resolving it, it has proceeded on an incomplete foundation.
23. This Court has considered whether it should itself adopt the agreement and dispose of the matter here and now. It has concluded that it should not, for three reasons.
(a) This Court sits on appeal. The succession cause is not before it; the trial Court is seized of the file, of the parties, of the mediation record and of the confirmation proceedings.
(b) Adoption is a judicial act, not a ministerial one. Even where a mediated settlement is regular, the Court asked to adopt it in a succession cause must still discharge its independent duty under Section 71 of the Law of Succession Act to satisfy itself as to the persons beneficially entitled and their shares, and must be satisfied that the agreement is not contrary to law or to the policy of the Court. Certain features of this agreement plainly call for that scrutiny — among them the apportionment of Portion 1 to Aggrey Mudaki, who is described in the proceedings as a purchaser rather than a dependant; the direction that Portion 3 be sold to meet administrative costs; and the holding of Portion 2 on trust. These are matters for evidence and enquiry at first instance, not for determination on an appellate record.
(c) The parties are entitled to be heard on the agreement before any Court acts upon it, whether to adopt it or to set it aside. They have not yet been heard on it anywhere.
24. The appropriate course, and the one which Section 78 of the Civil Procedure Act expressly contemplates, is to remit the matter to the trial Court for that single purpose. This Court is fortified in that view by the observation that the Ruling appealed from was, in this respect, interlocutory in character: it referred the matter to mediation, fixed a return date for further directions, and provided only for a default position should mediation fail. Mediation did not fail. The condition upon which the default distribution was to operate never arose.
25. Nothing in this judgment is to be read as an expression of any view upon the merits of the settlement, upon whether it ought ultimately to be adopted, or upon any of the substantive questions raised in the parties’ submissions. All of those remain entirely open. Equally, nothing in this judgment prevents any party from applying to the trial Court to have the agreement set aside or expunged on proper grounds; the point is only that it must be done by application and by decision, and not by silence.
26. As to costs, this is a family dispute concerning the estate of a man who died in 2009 and which has now occupied the Courts for the better part of four years. The Respondent’s submissions record, without contradiction, that of the six children of the late Japheth and Loise Alumasa only two survive and both are in poor health. No party has conducted itself in a manner deserving of a penalty in costs, and an order of costs would only further deplete an estate consisting of a single parcel of land. Each party shall bear its own costs, as the trial Court likewise ordered.
DISPOSITION
27. For the reasons set out above, this Court makes the following orders:
a. That the appeal succeeds to the limited extent set out in these orders and is otherwise neither allowed nor dismissed, all substantive grounds being left open for determination by the trial Court.
b. That the Ruling of Hon. J. A. Agonda, SPM, dated 16th October 2025 is set aside only insofar as the succession cause thereafter proceeded, and any default distribution under Order 3 thereof operated, without the Settlement Agreement dated 5th November 2025 having been determined. The reference to Court Annexed Mediation ordered by the said Ruling is affirmed.
c. That Vihiga Chief Magistrate’s Court Succession Cause No. E207 of 2023 is remitted to the trial Court for the sole purpose of hearing and determining the status and effect of the Settlement Agreement dated 5th November 2025 in Court Annexed Mediation Cause No. VIH/MED/098/2025.
d. That the Deputy Registrar, Court Annexed Mediation Registry, Vihiga, shall within fourteen (14) days of the date hereof cause the complete Mediation File in Cause No. VIH/MED/098/2025, including the original Settlement Agreement and the mediator’s report, to be placed before the trial Court and copies thereof to be supplied to the parties.
e. That any party seeking to have the said Settlement Agreement set aside, varied or expunged shall file and serve a formal application to that effect, supported by affidavit and setting out the grounds relied upon, within thirty (30) days of service of the mediation file, and the trial Court shall hear and determine the same on its merits.
f. That if no such application is filed within the said period, or if any such application is dismissed, the trial Court shall proceed to consider the adoption of the Settlement Agreement under Section 59B(4) of the Civil Procedure Act and, subject to satisfying itself as required by Section 71 of the Law of Succession Act, shall determine the summons for confirmation of grant in accordance with its decision on the agreement.
g. That the trial Court is requested to dispose of the remitted question within ninety (90) days of receipt of this file, this being an estate of a person who died in 2009 in which the principal beneficiaries are elderly and in poor health.
h. That pending the determination of the remitted question, no party shall subdivide, transfer, charge, alienate, waste or otherwise deal with land parcel L.R. No. Kakamega/Mbale/916 or any portion thereof, and the caution or restriction (if any) presently registered against the title shall remain in place.
i. That for the avoidance of doubt, all substantive issues raised in the Memorandum of Appeal and in the parties’ written submissions, including the existence or otherwise of a customary trust, the identity of the dependants under Section 29 of the Law of Succession Act, and the mode of distribution under Section 38 thereof remain open and are not determined by this judgment.
j. That each party shall bear its own costs of this appeal.
k. Liberty to apply.
28. Orders accordingly.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 6TH DAY OF AUGUST 2026.
M/S A. A. Mudanya & Co. Advocates
M/S Chimei & Malenya Company Advocates:
INTRODUCTION
1. This is a first appeal from the Ruling of Hon. J. A. Agonda, Senior Principal Magistrate, dated 16th October 2025 in Vihiga Chief Magistrate’s Court Succession Cause No. E207 of 2023, being the succession cause in respect of the estate of the late William Kavayi Alumasa, who died intestate on 24th March 2009. The principal, and for practical purposes the only, asset of the estate is land parcel L.R.
No. Kakamega/Mbale/916.
2. The 1st and 2nd Appellants are the son and daughter of the deceased. The Respondent is the deceased’s sister and, together with the 1st Appellant, a co-administrator of the estate. The contest below was, in substance, between the deceased’s children on the one hand and the deceased’s siblings and their families on the other, the latter asserting that the deceased held the suit parcel in trust for the wider family as first-born son, and the former asserting that the parcel belonged to the deceased absolutely and devolves upon his children alone under Section 38 of the Law of Succession Act.
3. Both parties filed written submissions on the appeal the Appellants’ dated 14th July 2026 and the Respondent’s dated 23rd July 2026 which canvass at length the questions of customary trust, of who qualifies as a dependant under Section 29 of the Act, and of the correct mode of distribution. For the reasons which follow, this Court does not reach any of those questions.
THE MATTER, WHICH DISPOSES OF THIS APPEAL
4. On a perusal of the record, the Court’s attention was drawn to a matter which neither party addressed in its submissions and which, in this Court’s view, must be disposed of before any question of distribution can arise. It is this: there exists on the Court record a Settlement Agreement dated and executed on 5th November 2025 in Court Annexed Mediation Cause No. VIH/MED/098/2025 (arising out of Vihiga Succession Cause No. E207 of 2023), bearing the stamp of the Deputy Registrar, Court Annexed Mediation Registry, Vihiga, and signed by all the parties to the succession cause, by their family representatives, by four witnesses and by the mediator.
5. The existence of that agreement is not a matter of speculation or of after-thought. It is the direct and intended product of the very Ruling now under appeal. At page 40 of the Supplementary Record of Appeal the learned trial magistrate, having invoked Article 159(2)(c) of the Constitution, stated in terms that she had urged the parties to reconcile and that “if they reach an agreement through mediation process, this Court would adopt mediation report to settle this matter”, adding that “in the event that parties agree and they record consent on the mode of distribution before a mediator, the Court has no choice but to adopt the consent and make it an order of the Court”. By Order
1 of the Ruling the learned magistrate formally referred the matter to Court annexed mediation to resolve the issue of the mode of distribution, by Order 2 directed that the mediation report be filed within fourteen days, and by Order 6 fixed a mention on 11th November 2025 for further directions.
6. The parties complied. Mediation was conducted under the Court annexed scheme and a settlement was reached and reduced into writing on 5th November 2025, that is to say within three weeks of the reference and before the mention date the trial Court had itself appointed. What is more, on the Respondent’s own account of the record the Ruling of 16th October 2025 was not delivered until 4th December 2025, which places the settlement squarely before the date of delivery.
7. The terms of the settlement may be shortly stated. The whole of L.R. No. Kakamega/Mbale/916 is to be subdivided into four portions: Portion 1, the portion on which Aggrey Mudaki has built, to be apportioned to him; Portion 2, the portion holding the family graves, to be held in trust jointly by Francis Ukiru and the 1st Appellant, Benard Muyenzi; Portion 3, a quarter of an acre, to be sold to defray administrative costs; and Portion 4, the remainder, to be subdivided equally among six units, namely the family of the late William Kavai Alumasa (represented by the 1st Appellant), the families of the late
Torokasi Kazira, of Elizabeth Omega, of the late Dorika Minayo Alumasa and of the late Rachel Mulengeka, and the Respondent. Clause B appoints the Respondent and the 1st Appellant as administrators. Clause C records that the parties understand fully that the agreement is binding and is the final say on the subdivision of the estate. Clause D records that the parties signed willingly and “without force, pressure or coercion”. Both Appellants signed.
8. Notwithstanding all of this, the record discloses no ruling, no order, no minute and no reasoning of any kind by which the trial Court dealt with that agreement. It was neither adopted nor rejected. It was not referred to the parties for comment. No reason for passing it over appears anywhere on the record, and this Court, having searched the record, is unable to understand why the agreement was not taken up. Instead the succession cause proceeded, and the parties have come before this Court on appeal arguing the merits of a distribution dispute which, on the face of the record, they had themselves already settled.
ISSUE FOR DETERMINATION
9. The single issue this Court determines is therefore: what is the status and effect of the Settlement Agreement dated 5th November 2025 in Court Annexed Mediation Cause No. VIH/MED/098/2025, and what consequential orders ought this Court to make?
10. This Court is alive to its duty as a first appellate Court to reconsider the evidence, evaluate it and draw its own conclusions (Selle v Associated Motor Boat Co. Ltd [1968] EA 123). That duty does not, however, require or entitle the Court to pronounce upon substantive questions which may prove not to arise at all. If the settlement stands, the questions of customary trust, of dependency under Section 29 and of the arithmetic of distribution fall away, for the parties will have answered them for themselves. It would be improper, and would risk prejudicing the parties before the trial Court, for this Court to express concluded views on those matters at this stage. They are accordingly left open.
THE APPLICABLE LAW
11. Article 159(2)(c) of the Constitution requires that, in exercising judicial authority, the Courts shall be guided by the principle that alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms, shall be promoted, subject only to Article 159(3). Article 159(2)(d) requires that justice be administered without undue regard
to procedural technicalities. These are not decorative provisions. They bind the Courts.
12. Sections 59A to 59D of the Civil Procedure Act, Cap 21, give that principle statutory form. Section 59B empowers the Court to refer a dispute to mediation. Critically, Section 59B(4) provides that an agreement between the parties to a dispute reached as a result of a mediation process shall be recorded in writing and registered with the Court giving rise to the mediation, and shall thereupon be enforceable as if it were a judgment of that Court. Section 59B(5) provides that no appeal shall lie against such an agreement. The Civil Procedure (Court-Annexed Mediation) Rules, 2022 carry the scheme into effect and provide for the filing of the mediation outcome with the Registrar and for the adoption of a settlement by the Court.
13. The statutory language is emphatic. A registered mediated settlement is not a proposal, a recommendation or an aid to the Court’s discretion. It has the quality of a judgment. It follows that it can no more be ignored than a judgment can be ignored, and that it can be displaced only in the manner in which a judgment or a consent may be displaced.
14. As to that, the law is long settled. A consent or compromise recorded in Court may be interfered with only on grounds which would suffice to set aside a contract, or where it was entered into without sufficient material facts, in misapprehension or ignorance of material facts, or in contravention of the policy of the Court: Hirani v Kassam (1952) 19 EACA 131; Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266; Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR
485; and Flora N. Wasike v Destimo Wamboko [1988] eKLR, where the Court of Appeal held that a consent judgment may only be set aside on grounds which would justify the setting aside of a contract, or on the ground that it was given without sufficient material facts or in misapprehension or ignorance of such facts.
15. Two further provisions bear on the disposition. Section 71 of the Law of Succession Act, Cap 160, requires the Court, on an application for confirmation of grant, to satisfy itself as to the identity of all persons beneficially entitled and as to the respective shares before confirming the grant. Section 78 of the Civil Procedure Act confers upon this Court, sitting on appeal, power not only to determine a case finally but also to remand it, to frame issues and to give such directions as the justice of the case requires. Section 47 and Section 50 of the Law of Succession Act, read with Rule 63 of the Probate and Administration Rules, make the civil appellate procedure applicable to appeals of this character.
ANALYSIS AND DETERMINATION
16. Applying that law to this record, the following propositions appear to this Court to be unanswerable.
17. First, the mediation was not a private or extra-curial arrangement. It was a Court annexed mediation, conducted under a reference ordered by the trial Court itself, registered under its own mediation number and lodged with the Deputy Registrar of the Court Annexed Mediation Registry at Vihiga. It falls squarely within Section 59B of the Civil Procedure Act.
18. Secondly, the agreement is regular on its face. It identifies the estate and the cause. It is signed by every party to the succession cause, including both Appellants, and by the representatives of each of the six family units. It is witnessed by four persons and bears the mediator’s signature. Clause D records expressly that it was signed willingly and without force, pressure or coercion. No party has at any time alleged, whether below or before this Court, that any signature was procured by fraud, duress, mistake or misrepresentation.
19. Thirdly, the trial Court had bound itself, in the clearest language, to adopt precisely such an agreement if one were reached. Having invited the parties to mediate, having ordered them to do so, and having told them that a recorded consent would leave the Court “no choice but to adopt” it, the Court could not thereafter simply pass over the fruit of that direction in silence. Parties who are ordered to mediate, and who mediate successfully, are entitled to have the outcome of that exercise judicially determined one way or the other. To leave it unaddressed is to defeat the reference and, with it, the constitutional imperative in Article 159(2)(c).
20. Fourthly, and this is the heart of the matter, a settlement agreement of this character cannot be wished away at will. It does not lapse because a party has had second thoughts, nor because it has become inconvenient, nor because the litigation has since travelled elsewhere. It is on the record, and it remains on the record until it is taken off by a judicial act. The only route by which a party dissatisfied with it may escape it is to move the Court by a proper application, on notice, seeking that it be set aside or expunged, and to establish one of the recognized grounds identified in Hirani, Brooke Bond and Flora Wasike. No such application has ever been made. There has been no cognizable litigation on the point at all. The agreement therefore stands unimpeached.
21. Fifthly, the conduct of the parties since 5th November 2025 does not assist them. Both sides have prosecuted and resisted this appeal on the footing that the mode of distribution remains at large, and neither raised the agreement in submissions. Silence, however, is not a mode of rescission. A party who has signed a mediated settlement and wishes to be released from it must say so openly and seek the Court’s leave; he may not achieve the same result by declining to mention it and inviting the Court to decide the dispute afresh.
22. It follows that the mode of distribution of this estate could not properly be determined, and cannot now properly be determined, without the status of the Settlement Agreement of 5th November
2025 first being resolved. To the extent that the succession cause has proceeded past that agreement without resolving it, it has proceeded on an incomplete foundation.
23. This Court has considered whether it should itself adopt the agreement and dispose of the matter here and now. It has concluded that it should not, for three reasons.
(a) This Court sits on appeal. The succession cause is not before it; the trial Court is seized of the file, of the parties, of the mediation record and of the confirmation proceedings.
(b) Adoption is a judicial act, not a ministerial one. Even where a mediated settlement is regular, the Court asked to adopt it in a succession cause must still discharge its independent duty under Section 71 of the Law of Succession Act to satisfy itself as to the persons beneficially entitled and their shares, and must be satisfied that the agreement is not contrary to law or to the policy of the Court. Certain features of this agreement plainly call for that scrutiny — among them the apportionment of Portion 1 to Aggrey Mudaki, who is described in the proceedings as a purchaser rather than a dependant; the direction that Portion 3 be sold to meet administrative costs; and the holding of Portion 2 on trust. These are matters for evidence and enquiry at first instance, not for determination on an appellate record.
(c) The parties are entitled to be heard on the agreement before any Court acts upon it, whether to adopt it or to set it aside. They have not yet been heard on it anywhere.
24. The appropriate course, and the one which Section 78 of the Civil Procedure Act expressly contemplates, is to remit the matter to the trial Court for that single purpose. This Court is fortified in that view by the observation that the Ruling appealed from was, in this respect, interlocutory in character: it referred the matter to mediation, fixed a return date for further directions, and provided only for a default position should mediation fail. Mediation did not fail. The condition upon which the default distribution was to operate never arose.
25. Nothing in this judgment is to be read as an expression of any view upon the merits of the settlement, upon whether it ought ultimately to be adopted, or upon any of the substantive questions raised in the parties’ submissions. All of those remain entirely open. Equally, nothing in this judgment prevents any party from applying to the trial Court to have the agreement set aside or expunged on proper grounds; the point is only that it must be done by application and by decision, and not by silence.
26. As to costs, this is a family dispute concerning the estate of a man who died in 2009 and which has now occupied the Courts for the better part of four years. The Respondent’s submissions record, without contradiction, that of the six children of the late Japheth and Loise Alumasa only two survive and both are in poor health. No party has conducted itself in a manner deserving of a penalty in costs, and an order of costs would only further deplete an estate consisting of a single parcel of land. Each party shall bear its own costs, as the trial Court likewise ordered.
DISPOSITION
27. For the reasons set out above, this Court makes the following orders:
a. That the appeal succeeds to the limited extent set out in these orders and is otherwise neither allowed nor dismissed, all substantive grounds being left open for determination by the trial Court.
b. That the Ruling of Hon. J. A. Agonda, SPM, dated 16th October 2025 is set aside only insofar as the succession cause thereafter proceeded, and any default distribution under Order 3 thereof operated, without the Settlement Agreement dated 5th November 2025 having been determined. The reference to Court Annexed Mediation ordered by the said Ruling is affirmed.
c. That Vihiga Chief Magistrate’s Court Succession Cause No. E207 of 2023 is remitted to the trial Court for the sole purpose of hearing and determining the status and effect of the Settlement Agreement dated 5th November 2025 in Court Annexed Mediation Cause No. VIH/MED/098/2025.
d. That the Deputy Registrar, Court Annexed Mediation Registry, Vihiga, shall within fourteen (14) days of the date hereof cause the complete Mediation File in Cause No. VIH/MED/098/2025, including the original Settlement Agreement and the mediator’s report, to be placed before the trial Court and copies thereof to be supplied to the parties.
e. That any party seeking to have the said Settlement Agreement set aside, varied or expunged shall file and serve a formal application to that effect, supported by affidavit and setting out the grounds relied upon, within thirty (30) days of service of the mediation file, and the trial Court shall hear and determine the same on its merits.
f. That if no such application is filed within the said period, or if any such application is dismissed, the trial Court shall proceed to consider the adoption of the Settlement Agreement under Section 59B(4) of the Civil Procedure Act and, subject to satisfying itself as required by Section 71 of the Law of Succession Act, shall determine the summons for confirmation of grant in accordance with its decision on the agreement.
g. That the trial Court is requested to dispose of the remitted question within ninety (90) days of receipt of this file, this being an estate of a person who died in 2009 in which the principal beneficiaries are elderly and in poor health.
h. That pending the determination of the remitted question, no party shall subdivide, transfer, charge, alienate, waste or otherwise deal with land parcel L.R. No. Kakamega/Mbale/916 or any portion thereof, and the caution or restriction (if any) presently registered against the title shall remain in place.
i. That for the avoidance of doubt, all substantive issues raised in the Memorandum of Appeal and in the parties’ written submissions, including the existence or otherwise of a customary trust, the identity of the dependants under Section 29 of the Law of Succession Act, and the mode of distribution under Section 38 thereof remain open and are not determined by this judgment.
j. That each party shall bear its own costs of this appeal.
k. Liberty to apply.
28. Orders accordingly.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 6TH DAY OF AUGUST 2026.