1. The petitioner and the respondents entered into a mediation settlement agreement dated 2.5.25 signed by the Ellis Moraa he mother to the petitioner and Evans Makori who was acting for the respondents in the mediation. Mr Ndiritu state counsel appearing for the 1st and 3rd respondents and Mr Jusa holding brief for Mr Anyor for the 2nd respondent confirmed the terms of the consent and asked this court to mark the matter as settled.
2. Mr Barongo who is Counsel for petitioner has opposed adoption of the report saying he was not consulted and that his client was coerced to enter into the agreement . He said the mediator rushed the matter and did not give then an opportunity to witness the document. Also that the matter involves sexual harassment and it is grave and touches on a minor . Also that regulation 26(1) of the mediation rules provides for who should attend . Also that the terms of settlement is a mockery . Further that the payment was by Mpesa which was irregular as it ought to have been made though the court.
3. Mr Ndiritu submitted that the orders for court annexed mediation was made on 12.2.25 when Mr Barongo was represented in court by Mr Ayiecha and so it was not true that Mr Ayiecha was not aware of the mediation. Also that parties later appeared before Hon Omwansa for directions . he also stated that the mother to petitioner signed the agreement wilfully.
4. Mr Barongo respondent and admitted that they were informed of the court annexed mediation but not the mediation date. Also that they were not given an opportunity to advise their client. He asked the court to interrogate the rushed manner in which the mediation was done. Also that to allow the agreement would amount to violation of the rights of the minor and that the agreement was flawed in law and substance .
5. I have considered the application together with the sentiments of counsel for the petitioner and the respondents .
6. On Whether counsel was informed of the mediation date or not Mr Barongo submitted that they were not informed of the mediation date and hence his client was not represented . Mr Ndiritu submitted that the parties were issued with directions for mediation before Hon Omwansa on 23.3.25 .The report indicates that the petitioner attended the mediation and it is thus clear that counsel was aware of that dates.
7. On whether it was mandatory for counsel to appear during mediation . Rule 26 of the mediation rules provide that :- 26. Persons who may attend mediation session
(1)At every mediation session, save as otherwise agreed, only the parties to the dispute and the parties’ advocates or representatives shall have the right to attend.(2)Save as otherwise agreed at the initial mediation session, each party to the dispute appearing without an advocate shall have the right to be represented by one representative.(3)A law firm representing a party during a mediation shall, at any given time, allocate that case to a particular advocate or advocates within the firm.
My understanding of the said rule is that parties and their advocates shall have a right to attend mediation sessions. It does not say that parties must be represented by advocates . The petitioner seems to have opted to attend the session without an advocate which was within her rights. Counsel had a duty to follow up the matter and attended if he really wanted to represent his client.
7. Counsel for the respondent has issued a statement from the Bar as the mother and next friend to the petitioner who attended the mediation did not filed any affidavit or take oath to confirm the allegations of coercion and thus the same amounted to heresay. Though the petition was based on allegations of sexual harassment and corporal punishment, the incident occurred when the petitioner was about 15 years old but now an adult aged 19 years old and thus an adult and thus her rights have not been violated . This is civil matter and the petitioner and or her next friend has a right to settle it on agreed terms . In the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] eKLR as follows: -“A Court of law cannot re-write a contract betweenthe parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved ‘ The mediation agreement has not been impeached and it is a contract between parties herein which this court has no jurisdiction to rewrite .’
8. On whether the mediation was rushed ,Mr Barongo alleged that the mediation was hurried . and the court issued next dates in the matter bearing in mind that expeditious disposal of cases is now enshrined in Article 159 (2) (b) of the constitution. It has emerged that the parties appeared before the mediator twice and so I do not see any wrong doing on the part of the mediator as he complied with the time lines set by the court .
9. In the upshot I find that the application is devoid of merit and I disallow the same .
T.A ODERA
JUDGE
16.6.25
DELIVERED VIRTUALLY ON THIS 16TH DAY OF JUNE 2025 IN THE PRESENCE OF .
Ndiritu for 1st 3rd and 4th respondent. Ayiecha h/b for Mr Barongo for petitioner
CA :Kipchirchir
2. Mr Barongo who is Counsel for petitioner has opposed adoption of the report saying he was not consulted and that his client was coerced to enter into the agreement . He said the mediator rushed the matter and did not give then an opportunity to witness the document. Also that the matter involves sexual harassment and it is grave and touches on a minor . Also that regulation 26(1) of the mediation rules provides for who should attend . Also that the terms of settlement is a mockery . Further that the payment was by Mpesa which was irregular as it ought to have been made though the court.
3. Mr Ndiritu submitted that the orders for court annexed mediation was made on 12.2.25 when Mr Barongo was represented in court by Mr Ayiecha and so it was not true that Mr Ayiecha was not aware of the mediation. Also that parties later appeared before Hon Omwansa for directions . he also stated that the mother to petitioner signed the agreement wilfully.
4. Mr Barongo respondent and admitted that they were informed of the court annexed mediation but not the mediation date. Also that they were not given an opportunity to advise their client. He asked the court to interrogate the rushed manner in which the mediation was done. Also that to allow the agreement would amount to violation of the rights of the minor and that the agreement was flawed in law and substance .
5. I have considered the application together with the sentiments of counsel for the petitioner and the respondents .
6. On Whether counsel was informed of the mediation date or not Mr Barongo submitted that they were not informed of the mediation date and hence his client was not represented . Mr Ndiritu submitted that the parties were issued with directions for mediation before Hon Omwansa on 23.3.25 .The report indicates that the petitioner attended the mediation and it is thus clear that counsel was aware of that dates.
7. On whether it was mandatory for counsel to appear during mediation . Rule 26 of the mediation rules provide that :- 26. Persons who may attend mediation session
(1)At every mediation session, save as otherwise agreed, only the parties to the dispute and the parties’ advocates or representatives shall have the right to attend.(2)Save as otherwise agreed at the initial mediation session, each party to the dispute appearing without an advocate shall have the right to be represented by one representative.(3)A law firm representing a party during a mediation shall, at any given time, allocate that case to a particular advocate or advocates within the firm.
My understanding of the said rule is that parties and their advocates shall have a right to attend mediation sessions. It does not say that parties must be represented by advocates . The petitioner seems to have opted to attend the session without an advocate which was within her rights. Counsel had a duty to follow up the matter and attended if he really wanted to represent his client.
7. Counsel for the respondent has issued a statement from the Bar as the mother and next friend to the petitioner who attended the mediation did not filed any affidavit or take oath to confirm the allegations of coercion and thus the same amounted to heresay. Though the petition was based on allegations of sexual harassment and corporal punishment, the incident occurred when the petitioner was about 15 years old but now an adult aged 19 years old and thus an adult and thus her rights have not been violated . This is civil matter and the petitioner and or her next friend has a right to settle it on agreed terms . In the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] eKLR as follows: -“A Court of law cannot re-write a contract betweenthe parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved ‘ The mediation agreement has not been impeached and it is a contract between parties herein which this court has no jurisdiction to rewrite .’
8. On whether the mediation was rushed ,Mr Barongo alleged that the mediation was hurried . and the court issued next dates in the matter bearing in mind that expeditious disposal of cases is now enshrined in Article 159 (2) (b) of the constitution. It has emerged that the parties appeared before the mediator twice and so I do not see any wrong doing on the part of the mediator as he complied with the time lines set by the court .
9. In the upshot I find that the application is devoid of merit and I disallow the same .
T.A ODERA
JUDGE
16.6.25
DELIVERED VIRTUALLY ON THIS 16TH DAY OF JUNE 2025 IN THE PRESENCE OF .
Ndiritu for 1st 3rd and 4th respondent. Ayiecha h/b for Mr Barongo for petitioner
CA :Kipchirchir