(On the 1st and 2nd Respondents’ Notice of Preliminary Objection dated 16th December 2025)
A. INTRODUCTION
1. This is a ruling on the 1st and 2nd Respondents’ Notice of Preliminary Objection dated 16th December 2025, filed against the Applicant’s Chamber Summons dated 4th August 2025, brought under Section 47 of the Law of Succession Act, Cap 160 Laws of Kenya and all other enabling provisions, seeking, in the main, revocation and/or annulment of the grant of letters of administration and the certificate of confirmation of grant issued to the 1st and 2nd Respondents on 20th July 2023.
2. The Applicant opposed the Preliminary Objection by way of Grounds of Opposition dated 10th March 2026. The parties thereafter canvassed the objection by way of written submissions, namely the Respondents’ submissions dated 12th March 2026 and the Applicant’s submissions dated 19th May 2026. I have carefully considered the pleadings on record, the rival submissions and the authorities cited, and I now render myself as follows.
B. BACKGROUND
3. The deceased, Kimalel Arap Sigei, died intestate on 26th April 1982. Representation to his estate was sought by the Applicant, Andrew Arap Malel, and a grant of letters of administration intestate was issued to him on 23rd September 2019. The grant was confirmed on 17th December 2019, and a certificate of confirmation of grant issued on 28th February 2020, distributing the estate, including the parcel of land known as KERICHO/KAPLEL ARTET/269, among the beneficiaries.
4. The Applicant subsequently moved the Court by way of Summons for Confirmation/Rectification of Grant dated 20th December 2021, which application was allowed ex parte, resulting in a rectified certificate of confirmation of grant issued on 21st March 2022, altering the mode of distribution earlier agreed upon.
5. Aggrieved by the alteration of their respective shares, the beneficiaries Hellen Bocheberi Ongori and Irene Cherono lodged a protest dated 13th May 2022 against the mode of distribution in the rectified certificate. Following the protest, the beneficiaries agreed to refer their dispute to court-annexed mediation and the Deputy Registrar, vide a letter dated 13th March 2023, forwarded a mediation settlement for the Court’s consideration.
6. On 20th July 2023, the Court adopted the mediation settlement, resulting in orders appointing the 1st and 2nd Respondents, James Kiplangat Malel and Ronald Langat, as co-administrators of the estate in place of the Applicant. A grant of letters of administration intestate was consequently issued to the Respondents, and the same was confirmed on the same date, 20th July 2023, giving rise to a certificate of confirmation of grant in favour of the Respondents.
7. It is against this background that the Applicant filed the Chamber Summons dated 4th August 2025, the subject of the present objection, seeking, among other orders, a stay of execution of the grant and certificate of confirmation of 20th July 2023, a temporary injunction restraining further subdivision or distribution of the estate, and revocation or annulment of the said grant and certificate of confirmation.
8. The Applicant’s supporting affidavit deposes that he was and remains the sole lawfully constituted administrator of the estate; that the 1st and 2nd Respondents were at no point validly appointed as administrators; that by the time the mediation culminating in the orders of 20th July 2023 was concluded, the parent parcel KERICHO/KAPLEL ARTET/269 had already been subdivided and closed pursuant to the confirmed grant of 21st March 2022, rendering it unavailable for a fresh confirmation; that there now exist two conflicting certificates of confirmation over the same land; and that the Respondents obtained the impugned grant and certificate through concealment of material facts and fraud.
C. THE PRELIMINARY OBJECTION
9. The 1st and 2nd Respondents’ Notice of Preliminary Objection dated 16th December 2025 is founded on three grounds, namely:
(a) That unless and until leave of the Court is sought and obtained, the Chamber Summons offends Rule 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022.
(b) That the succession cause was, on 20th July 2023, settled through the mediation process and a rectified certificate of confirmation of grant was accordingly issued by the Court on that date.
(c) That the estate property known as KERICHO/KAPLELARTET/269 is now for distribution in terms of the amended certificate of confirmation of grant issued on 20th July 2023.
10. On the strength of the foregoing, the Respondents pray that the Chamber Summons dated 4th August 2025 be found premature, defective in substance, an abuse of the process of the Court and struck out with costs.
D. THE APPLICANT’S RESPONSE
11. The Applicant opposed the objection through Grounds of Opposition dated 10th March 2026, contending, in summary, that the Preliminary Objection is fundamentally and incurably defective and does not raise a pure point of law; that the Civil Procedure Rules, including subsidiary rules made thereunder, do not govern succession causes, which are regulated by their own distinct and special procedural regime; that even if a mediation process took place, it did not involve all necessary parties and did not itself purport to revoke the earlier grant issued to the Applicant; that two confirmed grants and certificates of confirmation remain in force over the same parcel of land, giving rise to two conflicting orders of the Court; that the mediation was procured through concealment of material facts and fraud; that by the time the mediation was concluded and the second grant issued, the mother title had already been subdivided pursuant to the first grant and was no longer in existence for purposes of confirmation or distribution; and that the only remedy properly available to the Respondents, if dissatisfied with the earlier grant, was to apply for its revocation before seeking a fresh one.
E. SUBMISSIONS
12. Learned Counsel for the Respondents, M/s Koech Chepkurui & Associates, relied on Rule 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, which provides that no application for setting aside of an order or decree arising from a mediation settlement agreement may be filed except with leave of the Court, and that such leave must be sought by way of an application setting out grounds falling within Rule 39(3)(a) to (e), namely misconduct, fraud or fundamental mistake by the mediator; fraud, collusion or misrepresentation by a party to the mediation; a fundamental mistake as to the subject matter; incapacity of a party; or invalidity or unenforceability of the settlement agreement.
13. Counsel further relied on *In re Estate of the Late Kibilo Kipkoske A. Chumo alias Kipkoske Chumo alias Kipkoske arap Chumo alias Kipkoske Kibiko arap Chumo (Deceased) (Succession Cause 152 of 2001) [2024] KEHC 13224 (KLR)*, in which a similarly framed preliminary objection was upheld on the basis that the succession cause had been resolved by a mediation settlement and that Rule 39 was applicable.
14. Counsel additionally submitted on the sanctity of consent orders, relying on *Board of Trustees, National Social Security Fund v Micheal Mwalo [2015] eKLR*, *Flora N. Wasike v Destimo Wamboko [1988] eKLR* and *S M N v Z M S & 3 Others [2017] eKLR*, for the proposition that a consent order, once adopted, has contractual effect and may only be set aside on proof of fraud, collusion, misrepresentation, mistake or a ground recognised for setting aside a contract.
15. Learned Counsel for the Applicant, M/s Yegon & Mungai Advocates, relied on the locus classicus *Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696*, and on *Lemitei Ole Koros & Another v Attorney General & 3 Others [2016] eKLR*, for the submission that a preliminary objection must raise a pure point of law argued on the assumption that the facts pleaded by the opposing party are correct, and cannot be sustained where the Court would be required to look outside the pleadings for evidence or to make a contested determination of fact.
16. Counsel submitted that the existence, scope and validity of the mediation relied upon by the Respondents, and the allegations of fraud and concealment levelled against them, are all matters of fact requiring evidentiary proof and are not amenable to summary disposal on a preliminary objection. On costs, they invoked Section 27(1) and (2) of the Civil Procedure Act, 2010, for the proposition that costs follow the event.
F. ISSUES FOR DETERMINATION
17. Two issues fall for determination:
(i) Whether the Notice of Preliminary Objection dated 16th December 2025 meets the settled threshold of a preliminary objection on a pure point of law; and
(ii) Who bears the costs.
G. ANALYSIS AND DETERMINATION
18. The first issue is whether the Notice of Preliminary Objection raises a pure point of law.
19. The threshold for a preliminary objection is well settled and requires no reinvention. In the locus classicus *Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696*, it was held that “a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit.” Sir Charles Newbold, P, in his concurring opinion, added, in part, that: “A preliminary objection is in the nature of what used to be called a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” This test has been consistently applied by the High Court and the Court of Appeal, including in *Oraro v Mbaja [2005] eKLR*, where it was held that a preliminary objection is “a point of law which must not be blurred with factual details liable to be contest and in any event, to be proved through the processes of evidence.”
20. The same principle was reiterated in *Lemitei Ole Koros & Another v Attorney General & 3 Others [2016] eKLR*, where Munyao, J. observed that where facts are not contested, the Court is able to make a determination of law on the preliminary objection automatically; but where facts are in contest, it would be improper for a court to make a contested determination of fact within the ambit of a preliminary objection.
21. I am alive to the submissions on the sanctity of consent orders in *Board of Trustees, National Social Security Fund v Micheal Mwalo [2015] eKLR*, *Flora N. Wasike v Destimo Wamboko [1988] eKLR* and *S M N v Z M S & 3 Others [2017] eKLR*. Those authorities are, however, of no present assistance to the Respondents; they go to the substantive merits of the application for revocation, that is, whether the orders of 20th July 2023 ought ultimately to be set aside. They do not assist in determining whether the present objection, at this preliminary stage, raises a pure point of law capable of summary disposal.
22. Applying the foregoing principles to the three grounds raised in the Notice of Preliminary Objection, I find as follows.
23. Grounds (b) and (c) of the objection assert the fact that the succession cause was settled through mediation on 20th July 2023 and that the estate property is now for distribution in terms of the certificate of confirmation issued on that date. These are not points of law; they are the Respondents’ version of the facts.
24. That version is squarely and specifically controverted by the Applicant, who deposes on oath that the mediation which culminated in the orders of 20th July 2023 did not involve all necessary parties, that it was procured through concealment of material facts and fraud, that he alone remained the lawfully constituted administrator and that the parcel purportedly confirmed and distributed on 20th July 2023 had, by that date, already been subdivided and closed pursuant to the earlier confirmed grant of 21st March 2022 and was therefore not available for a fresh confirmation.
25. For a preliminary objection to succeed, the objecting party must accept, for purposes of the objection, the correctness of the facts pleaded by the opposing party. Where, as here, the Respondents’ objection in part is constructed upon a factual premise that the Applicant expressly disputes on oath, that premise cannot simply be assumed in the Respondents’ favour. Grounds (b) and (c) therefore fail to meet the threshold of a preliminary objection and are more properly matters for determination after the evidence of both sides has been tested.
26. Ground (a), concerning the requirement of leave under Rule 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, is framed as a point of law and, on its face, appears more promising for the Respondents.
27. This succession cause was resolved by way of a mediation settlement. In *In re Estate of the Late Kibilo Kipkoske A Chumo alias Kipkoske Chumo alias Kipkoske arap Chumo alias Kipkoske Kibiko arap Chumo (Deceased) [2024] KEHC 13224 (KLR)*, the Court found that Rule 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, is applicable. The Respondents rightly pointed out that the said Rule provides as follows:
“(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 sub-rule (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 sub-rule (3).”
28. The core of the foregoing provisions is that the Applicant ought to have sought leave of this Court prior to filing the instant application. It is therefore the finding of this Court that the application dated 4th August 2025 is improperly before this Court, having been filed without leave of court.
29. The same is ordered struck out, with each party to bear their own costs.
30. The Preliminary Objection is consequently upheld.
31. Mention on 17th November 2026 for confirmation of completion of administration.
T.A ODERA
JUDGE
8.7.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 8TH DAY OF JULY 2026 IN THE PRESENCE OF :
N/A FOR APPLICANT
N/A FOR RESPODENT
CA : BUSIENEI .
A. INTRODUCTION
1. This is a ruling on the 1st and 2nd Respondents’ Notice of Preliminary Objection dated 16th December 2025, filed against the Applicant’s Chamber Summons dated 4th August 2025, brought under Section 47 of the Law of Succession Act, Cap 160 Laws of Kenya and all other enabling provisions, seeking, in the main, revocation and/or annulment of the grant of letters of administration and the certificate of confirmation of grant issued to the 1st and 2nd Respondents on 20th July 2023.
2. The Applicant opposed the Preliminary Objection by way of Grounds of Opposition dated 10th March 2026. The parties thereafter canvassed the objection by way of written submissions, namely the Respondents’ submissions dated 12th March 2026 and the Applicant’s submissions dated 19th May 2026. I have carefully considered the pleadings on record, the rival submissions and the authorities cited, and I now render myself as follows.
B. BACKGROUND
3. The deceased, Kimalel Arap Sigei, died intestate on 26th April 1982. Representation to his estate was sought by the Applicant, Andrew Arap Malel, and a grant of letters of administration intestate was issued to him on 23rd September 2019. The grant was confirmed on 17th December 2019, and a certificate of confirmation of grant issued on 28th February 2020, distributing the estate, including the parcel of land known as KERICHO/KAPLEL ARTET/269, among the beneficiaries.
4. The Applicant subsequently moved the Court by way of Summons for Confirmation/Rectification of Grant dated 20th December 2021, which application was allowed ex parte, resulting in a rectified certificate of confirmation of grant issued on 21st March 2022, altering the mode of distribution earlier agreed upon.
5. Aggrieved by the alteration of their respective shares, the beneficiaries Hellen Bocheberi Ongori and Irene Cherono lodged a protest dated 13th May 2022 against the mode of distribution in the rectified certificate. Following the protest, the beneficiaries agreed to refer their dispute to court-annexed mediation and the Deputy Registrar, vide a letter dated 13th March 2023, forwarded a mediation settlement for the Court’s consideration.
6. On 20th July 2023, the Court adopted the mediation settlement, resulting in orders appointing the 1st and 2nd Respondents, James Kiplangat Malel and Ronald Langat, as co-administrators of the estate in place of the Applicant. A grant of letters of administration intestate was consequently issued to the Respondents, and the same was confirmed on the same date, 20th July 2023, giving rise to a certificate of confirmation of grant in favour of the Respondents.
7. It is against this background that the Applicant filed the Chamber Summons dated 4th August 2025, the subject of the present objection, seeking, among other orders, a stay of execution of the grant and certificate of confirmation of 20th July 2023, a temporary injunction restraining further subdivision or distribution of the estate, and revocation or annulment of the said grant and certificate of confirmation.
8. The Applicant’s supporting affidavit deposes that he was and remains the sole lawfully constituted administrator of the estate; that the 1st and 2nd Respondents were at no point validly appointed as administrators; that by the time the mediation culminating in the orders of 20th July 2023 was concluded, the parent parcel KERICHO/KAPLEL ARTET/269 had already been subdivided and closed pursuant to the confirmed grant of 21st March 2022, rendering it unavailable for a fresh confirmation; that there now exist two conflicting certificates of confirmation over the same land; and that the Respondents obtained the impugned grant and certificate through concealment of material facts and fraud.
C. THE PRELIMINARY OBJECTION
9. The 1st and 2nd Respondents’ Notice of Preliminary Objection dated 16th December 2025 is founded on three grounds, namely:
(a) That unless and until leave of the Court is sought and obtained, the Chamber Summons offends Rule 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022.
(b) That the succession cause was, on 20th July 2023, settled through the mediation process and a rectified certificate of confirmation of grant was accordingly issued by the Court on that date.
(c) That the estate property known as KERICHO/KAPLELARTET/269 is now for distribution in terms of the amended certificate of confirmation of grant issued on 20th July 2023.
10. On the strength of the foregoing, the Respondents pray that the Chamber Summons dated 4th August 2025 be found premature, defective in substance, an abuse of the process of the Court and struck out with costs.
D. THE APPLICANT’S RESPONSE
11. The Applicant opposed the objection through Grounds of Opposition dated 10th March 2026, contending, in summary, that the Preliminary Objection is fundamentally and incurably defective and does not raise a pure point of law; that the Civil Procedure Rules, including subsidiary rules made thereunder, do not govern succession causes, which are regulated by their own distinct and special procedural regime; that even if a mediation process took place, it did not involve all necessary parties and did not itself purport to revoke the earlier grant issued to the Applicant; that two confirmed grants and certificates of confirmation remain in force over the same parcel of land, giving rise to two conflicting orders of the Court; that the mediation was procured through concealment of material facts and fraud; that by the time the mediation was concluded and the second grant issued, the mother title had already been subdivided pursuant to the first grant and was no longer in existence for purposes of confirmation or distribution; and that the only remedy properly available to the Respondents, if dissatisfied with the earlier grant, was to apply for its revocation before seeking a fresh one.
E. SUBMISSIONS
12. Learned Counsel for the Respondents, M/s Koech Chepkurui & Associates, relied on Rule 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, which provides that no application for setting aside of an order or decree arising from a mediation settlement agreement may be filed except with leave of the Court, and that such leave must be sought by way of an application setting out grounds falling within Rule 39(3)(a) to (e), namely misconduct, fraud or fundamental mistake by the mediator; fraud, collusion or misrepresentation by a party to the mediation; a fundamental mistake as to the subject matter; incapacity of a party; or invalidity or unenforceability of the settlement agreement.
13. Counsel further relied on *In re Estate of the Late Kibilo Kipkoske A. Chumo alias Kipkoske Chumo alias Kipkoske arap Chumo alias Kipkoske Kibiko arap Chumo (Deceased) (Succession Cause 152 of 2001) [2024] KEHC 13224 (KLR)*, in which a similarly framed preliminary objection was upheld on the basis that the succession cause had been resolved by a mediation settlement and that Rule 39 was applicable.
14. Counsel additionally submitted on the sanctity of consent orders, relying on *Board of Trustees, National Social Security Fund v Micheal Mwalo [2015] eKLR*, *Flora N. Wasike v Destimo Wamboko [1988] eKLR* and *S M N v Z M S & 3 Others [2017] eKLR*, for the proposition that a consent order, once adopted, has contractual effect and may only be set aside on proof of fraud, collusion, misrepresentation, mistake or a ground recognised for setting aside a contract.
15. Learned Counsel for the Applicant, M/s Yegon & Mungai Advocates, relied on the locus classicus *Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696*, and on *Lemitei Ole Koros & Another v Attorney General & 3 Others [2016] eKLR*, for the submission that a preliminary objection must raise a pure point of law argued on the assumption that the facts pleaded by the opposing party are correct, and cannot be sustained where the Court would be required to look outside the pleadings for evidence or to make a contested determination of fact.
16. Counsel submitted that the existence, scope and validity of the mediation relied upon by the Respondents, and the allegations of fraud and concealment levelled against them, are all matters of fact requiring evidentiary proof and are not amenable to summary disposal on a preliminary objection. On costs, they invoked Section 27(1) and (2) of the Civil Procedure Act, 2010, for the proposition that costs follow the event.
F. ISSUES FOR DETERMINATION
17. Two issues fall for determination:
(i) Whether the Notice of Preliminary Objection dated 16th December 2025 meets the settled threshold of a preliminary objection on a pure point of law; and
(ii) Who bears the costs.
G. ANALYSIS AND DETERMINATION
18. The first issue is whether the Notice of Preliminary Objection raises a pure point of law.
19. The threshold for a preliminary objection is well settled and requires no reinvention. In the locus classicus *Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696*, it was held that “a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit.” Sir Charles Newbold, P, in his concurring opinion, added, in part, that: “A preliminary objection is in the nature of what used to be called a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” This test has been consistently applied by the High Court and the Court of Appeal, including in *Oraro v Mbaja [2005] eKLR*, where it was held that a preliminary objection is “a point of law which must not be blurred with factual details liable to be contest and in any event, to be proved through the processes of evidence.”
20. The same principle was reiterated in *Lemitei Ole Koros & Another v Attorney General & 3 Others [2016] eKLR*, where Munyao, J. observed that where facts are not contested, the Court is able to make a determination of law on the preliminary objection automatically; but where facts are in contest, it would be improper for a court to make a contested determination of fact within the ambit of a preliminary objection.
21. I am alive to the submissions on the sanctity of consent orders in *Board of Trustees, National Social Security Fund v Micheal Mwalo [2015] eKLR*, *Flora N. Wasike v Destimo Wamboko [1988] eKLR* and *S M N v Z M S & 3 Others [2017] eKLR*. Those authorities are, however, of no present assistance to the Respondents; they go to the substantive merits of the application for revocation, that is, whether the orders of 20th July 2023 ought ultimately to be set aside. They do not assist in determining whether the present objection, at this preliminary stage, raises a pure point of law capable of summary disposal.
22. Applying the foregoing principles to the three grounds raised in the Notice of Preliminary Objection, I find as follows.
23. Grounds (b) and (c) of the objection assert the fact that the succession cause was settled through mediation on 20th July 2023 and that the estate property is now for distribution in terms of the certificate of confirmation issued on that date. These are not points of law; they are the Respondents’ version of the facts.
24. That version is squarely and specifically controverted by the Applicant, who deposes on oath that the mediation which culminated in the orders of 20th July 2023 did not involve all necessary parties, that it was procured through concealment of material facts and fraud, that he alone remained the lawfully constituted administrator and that the parcel purportedly confirmed and distributed on 20th July 2023 had, by that date, already been subdivided and closed pursuant to the earlier confirmed grant of 21st March 2022 and was therefore not available for a fresh confirmation.
25. For a preliminary objection to succeed, the objecting party must accept, for purposes of the objection, the correctness of the facts pleaded by the opposing party. Where, as here, the Respondents’ objection in part is constructed upon a factual premise that the Applicant expressly disputes on oath, that premise cannot simply be assumed in the Respondents’ favour. Grounds (b) and (c) therefore fail to meet the threshold of a preliminary objection and are more properly matters for determination after the evidence of both sides has been tested.
26. Ground (a), concerning the requirement of leave under Rule 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, is framed as a point of law and, on its face, appears more promising for the Respondents.
27. This succession cause was resolved by way of a mediation settlement. In *In re Estate of the Late Kibilo Kipkoske A Chumo alias Kipkoske Chumo alias Kipkoske arap Chumo alias Kipkoske Kibiko arap Chumo (Deceased) [2024] KEHC 13224 (KLR)*, the Court found that Rule 39 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, is applicable. The Respondents rightly pointed out that the said Rule provides as follows:
“(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 sub-rule (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 sub-rule (3).”
28. The core of the foregoing provisions is that the Applicant ought to have sought leave of this Court prior to filing the instant application. It is therefore the finding of this Court that the application dated 4th August 2025 is improperly before this Court, having been filed without leave of court.
29. The same is ordered struck out, with each party to bear their own costs.
30. The Preliminary Objection is consequently upheld.
31. Mention on 17th November 2026 for confirmation of completion of administration.
T.A ODERA
JUDGE
8.7.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 8TH DAY OF JULY 2026 IN THE PRESENCE OF :
N/A FOR APPLICANT
N/A FOR RESPODENT
CA : BUSIENEI .