Before the court is the plaintiff/applicant’s Notice of Motion dated 30 September 2025, brought under sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The application seeks, in substance, two things: an order staying the delivery of the ruling slated for 24 October 2025 pending the hearing of this application, and an order adopting, as an order of this court, the parties’ consent dated 8 July 2025 and filed on 19 August 2025. It is supported by the affidavit of the applicant, Francois Makorani Ddaiddo, sworn on 30 September 2025, to which the consent is exhibited as “FMD 1”.
2. The dispute has a long procedural history. It began as Mombasa HCCC No. 164 of 2005, was transferred to the Employment and Labour Relations Court and registered as ELRC Cause No. 616 of 2015, and was there dismissed, together with the respondent’s counterclaim, as time-barred by judgment of 16 July 2021. On appeal, the Court of Appeal, by its judgment of 21 June 2024 in Mombasa Civil Appeal No. E082 of 2021, set that judgment aside and held that the Employment and Labour Relations Court had no jurisdiction to entertain the dispute. By a ruling delivered on 6 February 2025, that court (Mbaru, J) closed ELRC Cause No. 616 of 2015 and directed that the file revert to the High Court at Mombasa for directions. The matter is now before this court as HCCC No. E032 of 2025.
3. A ruling on the plaintiff/applicant’s application dated 9 April 2025 for, among other orders, an injunction restraining the respondent from selling the applicant’s property known as plot no. 1921/section II/MN was slated for delivery on 24 October 2025. Before that date, however, the parties, through their respective advocates, Marende Necheza & Company for the plaintiff and Kittony Maina Karanja & Company for the defendant, executed a consent dated 8 July 2025, which was filed on 19 August 2025. It is the adoption of that consent, and the consequential staying of the pending ruling, that the present application seeks.
4. The consent is couched as follows:
“BY CONSENT:
(1) That the ruling slated for 24/10/25 be and is hereby arrested and status quo be maintained;
(2) That the matter be referred for mediation within 90 days of the order herein;
(3) That the mediation report/decision be filed and the parties do deal with the matter accordingly.”
5. The application is, effectively, unopposed since the order sought is the very bargain the defendant itself struck and the only question for the court is whether it should give effect to the parties’ consent by adopting it as its own order and, therefore, staying the delivery of the pending ruling.
6. A consent recorded between parties, through their advocates, is in the nature of a contract. As the Court of Appeal held in Flora N. Wasike v Destimo Wamboko [1988] eKLR, such a consent is binding and is not to be interfered with save on grounds that would vitiate a contract, such as fraud, mistake or illegality. No such vitiating factor is suggested here; the consent is regular on its face, is signed by both firms of advocates, and discloses nothing unlawful or contrary to public policy. The court would ordinarily give effect to it as a matter of course.
7. More than that, the substance of the consent, a reference of the dispute to mediation, is precisely what the Constitution commands the court to encourage. Article 159(2)(c) of the Constitution of Kenya, 2010 provides 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 to clause (3).”
8. The court’s power to refer a dispute to mediation with the consent of the parties is anchored in sections 59B and 59C of the Civil Procedure Act, and in Order 46 of the Civil Procedure Rules, 2010, which together provide the framework for alternative dispute resolution. Where the parties themselves have agreed to mediate, giving effect to that agreement advances the overriding objective in sections 1A and 1B of the Civil Procedure Act, the just, expeditious, proportionate and affordable resolution of the dispute.
9. The prayer to arrest or stay the delivery of the ruling slated for 24 October 2025 is a necessary incident of adopting the consent, and it sits well within the inherent jurisdiction preserved by section 3A of the Civil Procedure Act. Given the procedural impasse in which this long-running matter finds itself, affording the parties a genuine opportunity to mediate is manifestly in the interests of justice, and no prejudice is occasioned to either side by doing so.
10. For the foregoing reasons, the application dated 30 September 2025 is merited and is allowed in the following terms:
(a) The consent dated 8 July 2025, filed on 19 August 2025, is hereby adopted as an order of this court.
(b) The delivery of the ruling slated for 24 October 2025 is stayed pending the outcome of mediation between the parties.
(c) The dispute is referred to mediation, which shall be concluded within sixty (60) days of the date of this order; the mediator’s report shall thereafter be filed.
(d) The status quo obtaining shall be maintained pending the conclusion of the mediation; and in particular there shall be no attachment, valuation for sale, or sale of the suit property known as Plot No. 1921/Section II/MN pending mediation.
(e) The matter shall be mentioned after sixty days from the date of this order to confirm compliance and the outcome of the mediation, and for further directions or orders as may be necessary.
(f) Costs shall be in the cause.
2. The dispute has a long procedural history. It began as Mombasa HCCC No. 164 of 2005, was transferred to the Employment and Labour Relations Court and registered as ELRC Cause No. 616 of 2015, and was there dismissed, together with the respondent’s counterclaim, as time-barred by judgment of 16 July 2021. On appeal, the Court of Appeal, by its judgment of 21 June 2024 in Mombasa Civil Appeal No. E082 of 2021, set that judgment aside and held that the Employment and Labour Relations Court had no jurisdiction to entertain the dispute. By a ruling delivered on 6 February 2025, that court (Mbaru, J) closed ELRC Cause No. 616 of 2015 and directed that the file revert to the High Court at Mombasa for directions. The matter is now before this court as HCCC No. E032 of 2025.
3. A ruling on the plaintiff/applicant’s application dated 9 April 2025 for, among other orders, an injunction restraining the respondent from selling the applicant’s property known as plot no. 1921/section II/MN was slated for delivery on 24 October 2025. Before that date, however, the parties, through their respective advocates, Marende Necheza & Company for the plaintiff and Kittony Maina Karanja & Company for the defendant, executed a consent dated 8 July 2025, which was filed on 19 August 2025. It is the adoption of that consent, and the consequential staying of the pending ruling, that the present application seeks.
4. The consent is couched as follows:
“BY CONSENT:
(1) That the ruling slated for 24/10/25 be and is hereby arrested and status quo be maintained;
(2) That the matter be referred for mediation within 90 days of the order herein;
(3) That the mediation report/decision be filed and the parties do deal with the matter accordingly.”
5. The application is, effectively, unopposed since the order sought is the very bargain the defendant itself struck and the only question for the court is whether it should give effect to the parties’ consent by adopting it as its own order and, therefore, staying the delivery of the pending ruling.
6. A consent recorded between parties, through their advocates, is in the nature of a contract. As the Court of Appeal held in Flora N. Wasike v Destimo Wamboko [1988] eKLR, such a consent is binding and is not to be interfered with save on grounds that would vitiate a contract, such as fraud, mistake or illegality. No such vitiating factor is suggested here; the consent is regular on its face, is signed by both firms of advocates, and discloses nothing unlawful or contrary to public policy. The court would ordinarily give effect to it as a matter of course.
7. More than that, the substance of the consent, a reference of the dispute to mediation, is precisely what the Constitution commands the court to encourage. Article 159(2)(c) of the Constitution of Kenya, 2010 provides 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 to clause (3).”
8. The court’s power to refer a dispute to mediation with the consent of the parties is anchored in sections 59B and 59C of the Civil Procedure Act, and in Order 46 of the Civil Procedure Rules, 2010, which together provide the framework for alternative dispute resolution. Where the parties themselves have agreed to mediate, giving effect to that agreement advances the overriding objective in sections 1A and 1B of the Civil Procedure Act, the just, expeditious, proportionate and affordable resolution of the dispute.
9. The prayer to arrest or stay the delivery of the ruling slated for 24 October 2025 is a necessary incident of adopting the consent, and it sits well within the inherent jurisdiction preserved by section 3A of the Civil Procedure Act. Given the procedural impasse in which this long-running matter finds itself, affording the parties a genuine opportunity to mediate is manifestly in the interests of justice, and no prejudice is occasioned to either side by doing so.
10. For the foregoing reasons, the application dated 30 September 2025 is merited and is allowed in the following terms:
(a) The consent dated 8 July 2025, filed on 19 August 2025, is hereby adopted as an order of this court.
(b) The delivery of the ruling slated for 24 October 2025 is stayed pending the outcome of mediation between the parties.
(c) The dispute is referred to mediation, which shall be concluded within sixty (60) days of the date of this order; the mediator’s report shall thereafter be filed.
(d) The status quo obtaining shall be maintained pending the conclusion of the mediation; and in particular there shall be no attachment, valuation for sale, or sale of the suit property known as Plot No. 1921/Section II/MN pending mediation.
(e) The matter shall be mentioned after sixty days from the date of this order to confirm compliance and the outcome of the mediation, and for further directions or orders as may be necessary.
(f) Costs shall be in the cause.