Background
1. Before the Court is the 3rd respondent’s Preliminary Objection dated 4 December 2025 directed against the applicant’s Chamber Summons dated 26 November 2025 and filed on 26 November 2025.
2. The Chamber Summons is expressed to be brought under, among other provisions, Articles 27 and 159 of the Constitution, sections 3A and 80 of the Civil Procedure Act, Order 45 rule 1 of the Civil Procedure Rules and rule 63 of the Probate and Administration Rules.
3. The applicant principally seeks orders that:
a) The intended survey of the parcel of land known as Nandi/Kipkaren Salient/262 pursuant to the ruling delivered on 16 October 2025 and the Certificate of Confirmation of Grant issued on 23 October 2025 be stayed pending the hearing and determination of the application;
b) The Nandi County Land Registrar be restrained from registering the resultant subdivisions;
c) The ruling delivered on 16 October 2025 and all consequential orders flowing from it be reviewed, varied and set aside;
d) The Certificate of Confirmation of Grant dated 23 October 2025 be set aside; and
e) The estate be redistributed in accordance with section 40 of the Law of Succession Act, either equally among all the beneficiaries or among the deceased’s three houses.
4. The application is founded upon the contention that the distribution adopted by the Court was unequal and discriminatory and did not comply with section 40 of the Law of Succession Act. The applicant describes the alleged non-compliance as an error apparent on the face of the record.
5. The 3rd respondent opposed the application through the Preliminary Objection dated 4 December 2025, which raises the following grounds:
a) That the application offends rule 39(1) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, having been filed without leave of the Court; and
b) That the application is frivolous, vexatious, an abuse of the court process, bad and untenable in law and should be struck out in limine with costs.
6. The Preliminary Objection was canvassed by written submissions.
The 3rd Respondent’s Submissions
7. The 3rd respondent submitted that, by its ruling delivered on 16 October 2025, this Court adopted the Mediation Settlement Agreement dated 23 December 2024 and confirmed the grant in accordance with the distribution contained in that agreement.
8. It was submitted that the present application seeks to review and set aside the ruling, its consequential orders and the Certificate of Confirmation founded upon the mediation settlement. It therefore falls squarely within rule 39(1) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022.
9. Counsel argued that rule 39(1) is couched in mandatory terms and prohibits the filing of an application to set aside an order or decree arising from a mediation settlement agreement unless leave of the Court has first been obtained. It was submitted that the applicant neither sought nor obtained such leave.
10. The 3rd respondent relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, In re Estate of Francis Niiru (Deceased) [2024] KEHC 12824 (KLR) and In re Estate of Simon Mugweru Waithirwa (Deceased) [2025] KEHC 3764 (KLR). The Court was urged to uphold the objection and strike out the application with costs.
The Applicant’s Submissions
11. The applicant conceded that leave is required where a party seeks to set aside an order or decree arising from a mediation settlement agreement. He, however, argued that his application seeks review of the Court’s ruling under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, rather than the setting aside of the Mediation Settlement Agreement itself.
12. According to the applicant, review and setting aside are separate jurisdictions producing distinct legal consequences. It was argued that although the framers of the Civil Procedure (Court-Annexed Mediation) Rules expressly required leave for setting aside, they did not impose a corresponding requirement upon an application for review.
13. The applicant further submitted that the mode of distribution contained in the Certificate of Confirmation was unequal, inequitable, discriminatory and inconsistent with section 40 of the Law of Succession Act.
14. Reliance was placed on Article 27 of the Constitution, section 40 of the Law of Succession Act and Mary Rono v Jane Rono & another [2002] KECA 198 (KLR) for the proposition that the estate of a polygamous intestate ought to be distributed equitably, taking into account the number of children in each house and any surviving wife as an additional unit.
15. The applicant maintained that he was not inviting the Court to rewrite or set aside the Mediation Settlement Agreement. He therefore urged the Court to dismiss the Preliminary Objection and determine the application for review on its merits.
Issues for Determination
16. From the Preliminary Objection and the parties’ respective submissions, the following issues arise for determination:
a) Whether the objection raises a proper preliminary point of law;
b) Whether the Chamber Summons falls within the scope of rule 39(1) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022;
c) Whether the application is competent despite having been filed without leave; and
d) What orders should issue, including on costs.
Analysis
Whether the objection raises a proper preliminary point of law
17. The legal character of a preliminary objection was settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. Law JA stated that a preliminary objection consists of a point of law which has been pleaded or arises by clear implication from the pleadings and which, if successfully argued, may dispose of the proceedings.
18. In the same decision, Sir Charles Newbold P observed that a preliminary objection is argued on the assumption that the facts pleaded by the opposite party are correct. It cannot properly be raised where any fact has to be ascertained or where the Court is called upon to exercise judicial discretion.
19. The principle was reiterated in Oraro v Mbaja [2005] 1 KLR 141, where the Court held that a preliminary objection must not be blurred with factual details liable to be contested and requiring proof through evidence.
20. In the present case, it is not disputed that:
a) The succession dispute was referred to court-annexed mediation;
b) A Mediation Settlement Agreement was subsequently filed;
c) The Court considered the objections raised against that settlement;
d) By its ruling delivered on 16 October 2025, the Court dismissed the objections and adopted the Mediation Settlement Agreement;
e) A Certificate of Confirmation of Grant was issued pursuant to that ruling;
f) The applicant now seeks review, variation and setting aside of the ruling and the Certificate of Confirmation; and
g) The applicant did not seek or obtain leave under rule 39(1) before filing the application.
21. Whether an application seeking those orders could validly be instituted without prior leave is a pure question of law capable of determination from the application and the existing court record. It does not require the Court to resolve any disputed fact or receive further evidence. If successfully argued, it is capable of disposing of the Chamber Summons.
22. The first ground of the Preliminary Objection therefore satisfies the test in Mukisa Biscuit . The second ground, which generally describes the application as frivolous, vexatious and an abuse of the court process, is not by itself a pure point of law. It can only stand to the extent that it flows as a legal consequence of non-compliance with rule 39(1).
23. The record shows that the matter was referred to court-annexed mediation on 11 November 2024. Following the mediation process, the Mediator filed the Mediation Settlement Agreement dated 23 December 2024.
24. When the matter came before the Court on 11 March 2025, the proposed distribution was read to the beneficiaries present. The applicant objected on the grounds that he had been moved from the portion of land upon which he had lived for more than twenty years and that the proposed distribution allocated substantially different acreages to different beneficiaries.
25. In view of the objections, the Court did not immediately adopt the settlement or confirm the grant. The parties were first afforded an opportunity to resolve the outstanding issues. When no further agreement was reached, the objecting beneficiaries were allowed to file their written objections.
26. The applicant filed his objection dated 14 July 2025. He stated, among other matters, that he did not agree with the mediation outcome, that not all the deceased’s children had participated in the process, that the distribution displaced him from the land upon which he lived and that the wishes of the deceased had not been respected.
27. In the ruling delivered on 16 October 2025, the Court considered the objections and determined whether the Mediation Settlement Agreement should be rejected or adopted. The Court found that the agreement catered for the beneficiaries and that the objectors had not established fraud, coercion, misrepresentation, fundamental mistake, professional misconduct or any other recognised ground for declining to adopt the settlement.
28. The Court consequently dismissed the objections, adopted the Mediation Settlement Agreement as an order of the Court and allowed the Summons for Confirmation of Grant in accordance with the agreed distribution.
29. Once adopted by the Court, a mediation settlement agreement acquires the force of an order or judgment and becomes binding upon the parties. In In re Estate of BM (Deceased) [2019] eKLR, the Court explained that a mediator does not determine the dispute but facilitates an agreement owned and signed by the parties. Upon adoption, that agreement becomes enforceable as an order or judgment of the Court.
30. More recently, in Kioko v Mutisya & another [2025] KEELC 6741 (KLR), the Court reiterated that a settlement arising from court-annexed mediation, once adopted by the Court, assumes the character of a consent judgment founded upon the parties’ agreement.
31. The applicable principle remains that a consent judgment has contractual effect and may only be impeached upon grounds that would justify setting aside a contract, or where stipulated conditions remain unfulfilled. In Flora N. Wasike v Destimo Wamboko [1988] eKLR, the Court of Appeal stated:
“It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.”
32. The mediation settlement adopted on 16 October 2025 therefore became a binding order of the Court. Any application whose object or effect is to nullify that order must comply with the specific legal procedure established for challenging orders arising from court-annexed mediation.
Whether Rule 39(1) applies to the application
33. Rule 39(1) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022 provides:
“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.”
34. The language of the provision is clear and mandatory. It prohibits the filing of an application to set aside an order or decree arising from a mediation settlement agreement unless prior leave of the Court has been obtained.
35. The leave requirement is not cosmetic. Court-annexed mediation is intended to enable parties to arrive at mutually acceptable and final settlements. The requirement safeguards the integrity and finality of that process while permitting the Court, at the leave stage, to determine whether an arguable legal basis exists for reopening an adopted settlement.
36. The applicant submits that he does not seek to set aside the Mediation Settlement Agreement but only seeks review of the Court’s ruling. That distinction is, however, contradicted by both the substance and express terms of the application.
37. Prayer 4 seeks an order that the ruling of 16 October 2025 and all consequential orders be “reviewed, varied and set aside.” Prayer 5 expressly seeks the setting aside of the Certificate of Confirmation. Prayers 6 and 7 seek substitution of the mediated distribution with a materially different mode of distribution.
38. If the orders sought were granted, the legal and practical effect would be to nullify the Court’s order adopting the Mediation Settlement Agreement and replace the distribution contained in that agreement. The application must therefore be determined according to its substance and intended legal effect, rather than the statutory provisions cited in its title.
39. Rule 39(1) does not merely apply to an application expressly described as one seeking to “set aside a mediation agreement.” It applies to any application seeking to set aside an order or decree arising from a mediation settlement agreement .
40. The ruling delivered on 16 October 2025 and the resulting Certificate of Confirmation indisputably arose from the Mediation Settlement Agreement. The present application therefore falls squarely within the language and object of rule 39(1).
41. The applicant’s reliance upon the distinction between review under Order 45 and setting aside under Order 12 rule 7 does not alter that conclusion. Setting aside is not confined to judgments or orders entered following non-attendance under Order 12. Rule 39 creates a specific procedural regime governing the setting aside of orders or decrees arising from court-annexed mediation.
42. A party cannot avoid a specific mandatory requirement by framing the same substantive relief as an application for review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. To hold otherwise would defeat the purpose of rule 39(1), because every challenge to an order adopting a mediated settlement could simply be labelled an application for review.
43. Of direct relevance is In re Estate of Francis Niiru (Deceased) [2024] KEHC 12824 (KLR). In that case, the Court considered an application seeking to set aside a distribution founded upon a mediation settlement agreement. It held that the application was not properly before the Court because the applicants had failed to obtain prior leave under rule 39(1). The Court explained that the leave stage enables the Court to examine the reasons advanced for reopening the settlement before a substantive application is filed.
44. The facts and applicable legal provision in In re Estate of Francis Niiru (Deceased) are closely comparable to the present case. Here, too, the applicant seeks to undo a distribution founded upon a mediation settlement and embodied in a Certificate of Confirmation, without first obtaining leave.
45. It is common ground that the applicant neither sought nor obtained leave before filing the Chamber Summons. The application therefore contravenes the express terms of rule 39(1).
Whether the defect is curable under Article 159(2)(d)
46. Although the applicant did not expressly base his answer to the objection upon Article 159(2)(d), the application generally invokes Article 159 of the Constitution. It is therefore necessary to consider whether the absence of leave is a procedural defect capable of being overlooked in the interests of substantive justice.
47. Article 159(2)(d) requires courts to administer justice without undue regard to procedural technicalities. It does not, however, authorise courts to disregard mandatory procedural requirements that safeguard substantive legal rights and regulate the lawful invocation of the Court’s jurisdiction.
48. In In re Estate of Simon Mugweru Waithirwa (Deceased) [2025] KEHC 3764 (KLR), the Court reiterated that Article 159(2)(d) is not a panacea for failure to comply with express procedural requirements.
49. Similarly, the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR recognised that procedural requirements serve a legitimate purpose in the administration of justice and that Article 159 was not intended to abolish them.
50. The requirement for leave under rule 39(1) is a substantive procedural safeguard. It regulates when and how a party may seek to reopen an order or decree founded upon a consensual mediation settlement. Treating it as a mere technicality would deprive it of any legal effect.
51. The omission cannot therefore be cured through Article 159(2)(d) of the Constitution.
52. The applicant has advanced substantive arguments that the distribution contravenes Article 27 of the Constitution and section 40 of the Law of Succession Act. He also relies on Mary Rono v Jane Rono & another [2002] KECA 198 (KLR) concerning the equitable distribution of an intestate estate involving a polygamous family.
53. Those arguments go to the merits of the intended review. They do not answer the preliminary question whether the application was lawfully instituted.
54. Further, the applicant’s complaint that some beneficiaries received more land than others was placed before the Court prior to the ruling of 16 October 2025. The Court considered that objection before adopting the settlement. Whether the Court correctly interpreted or applied section 40 would require an examination of the merits of the impugned ruling.
55. An alleged erroneous interpretation or application of the law is not necessarily an error apparent on the face of the record. Where determination of the alleged error requires elaborate argument or reconsideration of the merits, the complaint ordinarily lies in appeal rather than review.
56. The Court must, however, refrain from conclusively determining those substantive matters at this stage. Having found that the application was filed contrary to rule 39(1), the Court cannot proceed to determine its merits.
57. The 3rd respondent urged the Court to dismiss the application. However, the Court has not determined the application on its substantive merits. Its finding is that the application is not properly before the Court because the mandatory leave requirement was not satisfied.
58. In those circumstances, the proper order is to strike out the application rather than dismiss it. Striking out reflects the procedural incompetence of the application without purporting to make a final determination of the underlying substantive complaints.
Disposition
59. Consequently, the Court makes the following orders:
a) The 3rd respondent’s Preliminary Objection dated 4 December 2025 is upheld.
b) The applicant’s Chamber Summons dated 24 November 2025 and filed on 26 November 2025 is struck out for having been filed without leave of the Court contrary to rule 39(1) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022.
c) Any interim orders issued pursuant to the said Chamber Summons are hereby discharged.
d) Considering that the dispute involves members of the same family and concerns the estate of their deceased parent, each party shall bear their own costs of the Preliminary Objection and the application.
60. It is so ordered.
DELIVERED, DATED, AND SIGNED ON THIS 18 TH DAY OF SEPTEMBER, 2026.
RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU-JUDGE.
In the presence of: -
N/A for the Applicant.
Mr. Sambu for the Respondent
Court Assistant- Miss Lydia.
1 | Page ELDORET P& A E054 OF 2022
1. Before the Court is the 3rd respondent’s Preliminary Objection dated 4 December 2025 directed against the applicant’s Chamber Summons dated 26 November 2025 and filed on 26 November 2025.
2. The Chamber Summons is expressed to be brought under, among other provisions, Articles 27 and 159 of the Constitution, sections 3A and 80 of the Civil Procedure Act, Order 45 rule 1 of the Civil Procedure Rules and rule 63 of the Probate and Administration Rules.
3. The applicant principally seeks orders that:
a) The intended survey of the parcel of land known as Nandi/Kipkaren Salient/262 pursuant to the ruling delivered on 16 October 2025 and the Certificate of Confirmation of Grant issued on 23 October 2025 be stayed pending the hearing and determination of the application;
b) The Nandi County Land Registrar be restrained from registering the resultant subdivisions;
c) The ruling delivered on 16 October 2025 and all consequential orders flowing from it be reviewed, varied and set aside;
d) The Certificate of Confirmation of Grant dated 23 October 2025 be set aside; and
e) The estate be redistributed in accordance with section 40 of the Law of Succession Act, either equally among all the beneficiaries or among the deceased’s three houses.
4. The application is founded upon the contention that the distribution adopted by the Court was unequal and discriminatory and did not comply with section 40 of the Law of Succession Act. The applicant describes the alleged non-compliance as an error apparent on the face of the record.
5. The 3rd respondent opposed the application through the Preliminary Objection dated 4 December 2025, which raises the following grounds:
a) That the application offends rule 39(1) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, having been filed without leave of the Court; and
b) That the application is frivolous, vexatious, an abuse of the court process, bad and untenable in law and should be struck out in limine with costs.
6. The Preliminary Objection was canvassed by written submissions.
The 3rd Respondent’s Submissions
7. The 3rd respondent submitted that, by its ruling delivered on 16 October 2025, this Court adopted the Mediation Settlement Agreement dated 23 December 2024 and confirmed the grant in accordance with the distribution contained in that agreement.
8. It was submitted that the present application seeks to review and set aside the ruling, its consequential orders and the Certificate of Confirmation founded upon the mediation settlement. It therefore falls squarely within rule 39(1) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022.
9. Counsel argued that rule 39(1) is couched in mandatory terms and prohibits the filing of an application to set aside an order or decree arising from a mediation settlement agreement unless leave of the Court has first been obtained. It was submitted that the applicant neither sought nor obtained such leave.
10. The 3rd respondent relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, In re Estate of Francis Niiru (Deceased) [2024] KEHC 12824 (KLR) and In re Estate of Simon Mugweru Waithirwa (Deceased) [2025] KEHC 3764 (KLR). The Court was urged to uphold the objection and strike out the application with costs.
The Applicant’s Submissions
11. The applicant conceded that leave is required where a party seeks to set aside an order or decree arising from a mediation settlement agreement. He, however, argued that his application seeks review of the Court’s ruling under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, rather than the setting aside of the Mediation Settlement Agreement itself.
12. According to the applicant, review and setting aside are separate jurisdictions producing distinct legal consequences. It was argued that although the framers of the Civil Procedure (Court-Annexed Mediation) Rules expressly required leave for setting aside, they did not impose a corresponding requirement upon an application for review.
13. The applicant further submitted that the mode of distribution contained in the Certificate of Confirmation was unequal, inequitable, discriminatory and inconsistent with section 40 of the Law of Succession Act.
14. Reliance was placed on Article 27 of the Constitution, section 40 of the Law of Succession Act and Mary Rono v Jane Rono & another [2002] KECA 198 (KLR) for the proposition that the estate of a polygamous intestate ought to be distributed equitably, taking into account the number of children in each house and any surviving wife as an additional unit.
15. The applicant maintained that he was not inviting the Court to rewrite or set aside the Mediation Settlement Agreement. He therefore urged the Court to dismiss the Preliminary Objection and determine the application for review on its merits.
Issues for Determination
16. From the Preliminary Objection and the parties’ respective submissions, the following issues arise for determination:
a) Whether the objection raises a proper preliminary point of law;
b) Whether the Chamber Summons falls within the scope of rule 39(1) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022;
c) Whether the application is competent despite having been filed without leave; and
d) What orders should issue, including on costs.
Analysis
Whether the objection raises a proper preliminary point of law
17. The legal character of a preliminary objection was settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. Law JA stated that a preliminary objection consists of a point of law which has been pleaded or arises by clear implication from the pleadings and which, if successfully argued, may dispose of the proceedings.
18. In the same decision, Sir Charles Newbold P observed that a preliminary objection is argued on the assumption that the facts pleaded by the opposite party are correct. It cannot properly be raised where any fact has to be ascertained or where the Court is called upon to exercise judicial discretion.
19. The principle was reiterated in Oraro v Mbaja [2005] 1 KLR 141, where the Court held that a preliminary objection must not be blurred with factual details liable to be contested and requiring proof through evidence.
20. In the present case, it is not disputed that:
a) The succession dispute was referred to court-annexed mediation;
b) A Mediation Settlement Agreement was subsequently filed;
c) The Court considered the objections raised against that settlement;
d) By its ruling delivered on 16 October 2025, the Court dismissed the objections and adopted the Mediation Settlement Agreement;
e) A Certificate of Confirmation of Grant was issued pursuant to that ruling;
f) The applicant now seeks review, variation and setting aside of the ruling and the Certificate of Confirmation; and
g) The applicant did not seek or obtain leave under rule 39(1) before filing the application.
21. Whether an application seeking those orders could validly be instituted without prior leave is a pure question of law capable of determination from the application and the existing court record. It does not require the Court to resolve any disputed fact or receive further evidence. If successfully argued, it is capable of disposing of the Chamber Summons.
22. The first ground of the Preliminary Objection therefore satisfies the test in Mukisa Biscuit . The second ground, which generally describes the application as frivolous, vexatious and an abuse of the court process, is not by itself a pure point of law. It can only stand to the extent that it flows as a legal consequence of non-compliance with rule 39(1).
23. The record shows that the matter was referred to court-annexed mediation on 11 November 2024. Following the mediation process, the Mediator filed the Mediation Settlement Agreement dated 23 December 2024.
24. When the matter came before the Court on 11 March 2025, the proposed distribution was read to the beneficiaries present. The applicant objected on the grounds that he had been moved from the portion of land upon which he had lived for more than twenty years and that the proposed distribution allocated substantially different acreages to different beneficiaries.
25. In view of the objections, the Court did not immediately adopt the settlement or confirm the grant. The parties were first afforded an opportunity to resolve the outstanding issues. When no further agreement was reached, the objecting beneficiaries were allowed to file their written objections.
26. The applicant filed his objection dated 14 July 2025. He stated, among other matters, that he did not agree with the mediation outcome, that not all the deceased’s children had participated in the process, that the distribution displaced him from the land upon which he lived and that the wishes of the deceased had not been respected.
27. In the ruling delivered on 16 October 2025, the Court considered the objections and determined whether the Mediation Settlement Agreement should be rejected or adopted. The Court found that the agreement catered for the beneficiaries and that the objectors had not established fraud, coercion, misrepresentation, fundamental mistake, professional misconduct or any other recognised ground for declining to adopt the settlement.
28. The Court consequently dismissed the objections, adopted the Mediation Settlement Agreement as an order of the Court and allowed the Summons for Confirmation of Grant in accordance with the agreed distribution.
29. Once adopted by the Court, a mediation settlement agreement acquires the force of an order or judgment and becomes binding upon the parties. In In re Estate of BM (Deceased) [2019] eKLR, the Court explained that a mediator does not determine the dispute but facilitates an agreement owned and signed by the parties. Upon adoption, that agreement becomes enforceable as an order or judgment of the Court.
30. More recently, in Kioko v Mutisya & another [2025] KEELC 6741 (KLR), the Court reiterated that a settlement arising from court-annexed mediation, once adopted by the Court, assumes the character of a consent judgment founded upon the parties’ agreement.
31. The applicable principle remains that a consent judgment has contractual effect and may only be impeached upon grounds that would justify setting aside a contract, or where stipulated conditions remain unfulfilled. In Flora N. Wasike v Destimo Wamboko [1988] eKLR, the Court of Appeal stated:
“It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.”
32. The mediation settlement adopted on 16 October 2025 therefore became a binding order of the Court. Any application whose object or effect is to nullify that order must comply with the specific legal procedure established for challenging orders arising from court-annexed mediation.
Whether Rule 39(1) applies to the application
33. Rule 39(1) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022 provides:
“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.”
34. The language of the provision is clear and mandatory. It prohibits the filing of an application to set aside an order or decree arising from a mediation settlement agreement unless prior leave of the Court has been obtained.
35. The leave requirement is not cosmetic. Court-annexed mediation is intended to enable parties to arrive at mutually acceptable and final settlements. The requirement safeguards the integrity and finality of that process while permitting the Court, at the leave stage, to determine whether an arguable legal basis exists for reopening an adopted settlement.
36. The applicant submits that he does not seek to set aside the Mediation Settlement Agreement but only seeks review of the Court’s ruling. That distinction is, however, contradicted by both the substance and express terms of the application.
37. Prayer 4 seeks an order that the ruling of 16 October 2025 and all consequential orders be “reviewed, varied and set aside.” Prayer 5 expressly seeks the setting aside of the Certificate of Confirmation. Prayers 6 and 7 seek substitution of the mediated distribution with a materially different mode of distribution.
38. If the orders sought were granted, the legal and practical effect would be to nullify the Court’s order adopting the Mediation Settlement Agreement and replace the distribution contained in that agreement. The application must therefore be determined according to its substance and intended legal effect, rather than the statutory provisions cited in its title.
39. Rule 39(1) does not merely apply to an application expressly described as one seeking to “set aside a mediation agreement.” It applies to any application seeking to set aside an order or decree arising from a mediation settlement agreement .
40. The ruling delivered on 16 October 2025 and the resulting Certificate of Confirmation indisputably arose from the Mediation Settlement Agreement. The present application therefore falls squarely within the language and object of rule 39(1).
41. The applicant’s reliance upon the distinction between review under Order 45 and setting aside under Order 12 rule 7 does not alter that conclusion. Setting aside is not confined to judgments or orders entered following non-attendance under Order 12. Rule 39 creates a specific procedural regime governing the setting aside of orders or decrees arising from court-annexed mediation.
42. A party cannot avoid a specific mandatory requirement by framing the same substantive relief as an application for review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. To hold otherwise would defeat the purpose of rule 39(1), because every challenge to an order adopting a mediated settlement could simply be labelled an application for review.
43. Of direct relevance is In re Estate of Francis Niiru (Deceased) [2024] KEHC 12824 (KLR). In that case, the Court considered an application seeking to set aside a distribution founded upon a mediation settlement agreement. It held that the application was not properly before the Court because the applicants had failed to obtain prior leave under rule 39(1). The Court explained that the leave stage enables the Court to examine the reasons advanced for reopening the settlement before a substantive application is filed.
44. The facts and applicable legal provision in In re Estate of Francis Niiru (Deceased) are closely comparable to the present case. Here, too, the applicant seeks to undo a distribution founded upon a mediation settlement and embodied in a Certificate of Confirmation, without first obtaining leave.
45. It is common ground that the applicant neither sought nor obtained leave before filing the Chamber Summons. The application therefore contravenes the express terms of rule 39(1).
Whether the defect is curable under Article 159(2)(d)
46. Although the applicant did not expressly base his answer to the objection upon Article 159(2)(d), the application generally invokes Article 159 of the Constitution. It is therefore necessary to consider whether the absence of leave is a procedural defect capable of being overlooked in the interests of substantive justice.
47. Article 159(2)(d) requires courts to administer justice without undue regard to procedural technicalities. It does not, however, authorise courts to disregard mandatory procedural requirements that safeguard substantive legal rights and regulate the lawful invocation of the Court’s jurisdiction.
48. In In re Estate of Simon Mugweru Waithirwa (Deceased) [2025] KEHC 3764 (KLR), the Court reiterated that Article 159(2)(d) is not a panacea for failure to comply with express procedural requirements.
49. Similarly, the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR recognised that procedural requirements serve a legitimate purpose in the administration of justice and that Article 159 was not intended to abolish them.
50. The requirement for leave under rule 39(1) is a substantive procedural safeguard. It regulates when and how a party may seek to reopen an order or decree founded upon a consensual mediation settlement. Treating it as a mere technicality would deprive it of any legal effect.
51. The omission cannot therefore be cured through Article 159(2)(d) of the Constitution.
52. The applicant has advanced substantive arguments that the distribution contravenes Article 27 of the Constitution and section 40 of the Law of Succession Act. He also relies on Mary Rono v Jane Rono & another [2002] KECA 198 (KLR) concerning the equitable distribution of an intestate estate involving a polygamous family.
53. Those arguments go to the merits of the intended review. They do not answer the preliminary question whether the application was lawfully instituted.
54. Further, the applicant’s complaint that some beneficiaries received more land than others was placed before the Court prior to the ruling of 16 October 2025. The Court considered that objection before adopting the settlement. Whether the Court correctly interpreted or applied section 40 would require an examination of the merits of the impugned ruling.
55. An alleged erroneous interpretation or application of the law is not necessarily an error apparent on the face of the record. Where determination of the alleged error requires elaborate argument or reconsideration of the merits, the complaint ordinarily lies in appeal rather than review.
56. The Court must, however, refrain from conclusively determining those substantive matters at this stage. Having found that the application was filed contrary to rule 39(1), the Court cannot proceed to determine its merits.
57. The 3rd respondent urged the Court to dismiss the application. However, the Court has not determined the application on its substantive merits. Its finding is that the application is not properly before the Court because the mandatory leave requirement was not satisfied.
58. In those circumstances, the proper order is to strike out the application rather than dismiss it. Striking out reflects the procedural incompetence of the application without purporting to make a final determination of the underlying substantive complaints.
Disposition
59. Consequently, the Court makes the following orders:
a) The 3rd respondent’s Preliminary Objection dated 4 December 2025 is upheld.
b) The applicant’s Chamber Summons dated 24 November 2025 and filed on 26 November 2025 is struck out for having been filed without leave of the Court contrary to rule 39(1) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022.
c) Any interim orders issued pursuant to the said Chamber Summons are hereby discharged.
d) Considering that the dispute involves members of the same family and concerns the estate of their deceased parent, each party shall bear their own costs of the Preliminary Objection and the application.
60. It is so ordered.
DELIVERED, DATED, AND SIGNED ON THIS 18 TH DAY OF SEPTEMBER, 2026.
RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU-JUDGE.
In the presence of: -
N/A for the Applicant.
Mr. Sambu for the Respondent
Court Assistant- Miss Lydia.
1 | Page ELDORET P& A E054 OF 2022