(Appeal from the Judgment and decree of Hon. A.C. Munyuny, Resident Magistrate, delivered CMCC No. E090 of 2022, delivered on 31 st Day of March 2025).
RULING.
1. This is an appeal from the ruling of Hon. A.C. Munyuny, Resident Magistrates delivered at Migori in Civil Suit CMCC Succession No. E090 of 2022 delivered on the 31 st of March 2025.
2. Briefly, these succession proceedings were initiated by the Appellant, Peter Okungu Abongo, after he cited Benard Odhiambo Awino and Margaret Adhiambo Awino, regarding the estate of the late George Awino Obuo. Margaret Adhiambo Awino is the widow of the deceased.
3. The matter proceeded and had reached the stage for Confirmation of the Grant of Letters of Administration, which had been issued on the 6 th of June 2022 to the Appellant, when a dispute arose on the mode of distribution. The Applicant/Respondent filed rhe application dated 14 th March 2023, seeking for the Grant of Letters of Administration to be revoked. The record indicates the parties made attempts to settle the matter out of court and at some point, they almost had an agreement. Unfortunately, thus was not to be and the parties eventually proposed to have the matter referred for mediation. This was done on the 2 nd October 2024.
4. On the 6 th November, 2024, the record indicates that both Counsel present before the court stated the report was not ready as the parties were yet to contact the mediator. The court then scheduled the matter for further mention on the 4 th December 2024 , to consider a progress report on the mediation. On the 19 th November 2024 , the record indicates that the court recorded a Full Settlement Agreement on the mediation, in the following terms:
i. That the parties agreed for the succession process to take place immediately.
ii. That the Applicant Paul Omondi Awino to be included in the list of family beneficiaries.
iii. That the Petitioner, Peter Okungu Abongo, the buyer to be allocated his portion of land measuring 0.06 Ha as reflected in the consent and position of residence.
iv. That parties agreed to inculcate peace and harmony throughout their stay .
5. By an application dated 10 th January 2025 , the Appellant sought to set aside the mediation settlement agreement and have the matter remitted for full hearing and determination. The application was supported by the grounds on the face of the application and the Supporting Affidavit of the Appellant sworn on the 10 th January 2025 , and the annexures thereto. The application was opposed by the Replying Affidavit of the Respondent sworn on the 30 th January 2025 . Both parties filed their submissions as directed by the court and the court delivered a reasoned ruling on the 2 nd April, 2025 .
6. The grounds upon which the Appellant had sought to have the Mediation Settlement Agreement set aside can be summarized as:
v. The Appellant did not sign the mediation agreement as he suffers from dementia and his signature was forged.
vi. That there was collusion between the Respondent and the mediator which led to a one sided agreement.
vii. The Appellant’s home has been curved out in the subdivision and auctioneers are likely to evict him from the portion he has set up his homestead and buried some of his deceased relatives .
viii. That the mediation agreement is null and void .
7. Having considered the application, the grounds and affidavit in support, the replying affidavit and the submissions of the parties, I deem there is only one issue for the court to determine. That is, if there is a valid Mediation Settlement Agreement, capable of being executed as a determination of the court.
Analysis and Determination .
8. As well set out in the ruling of the learned Magistrate, the provisions of the Civil Procedure (Court Annexed Mediation) Rules set out clearly under Rule 39 the grounds upon which a Mediation Settlement Agreement can be set aside. These are:
“ THE CIVIL PROCEDURE (COURT-ANNEXED MEDIATION) RULES provides; Rule 39.
Setting aside an order or decree arising out of a settlement agreement
(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.
(f) 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).
(g) The court shall hear and determine an application under this on priority basis within thirty days after filing .
9. Before embarking on the substance of the ruling under appeal, I have to consider what constitutes a Settlement Agreement, in the context of the court. The genesis of the dispute is that the court adopted the consent without the parties and therefore no proper consent is before the court. The Mediation Settlement Agreement was filed in court by the mediator. It shows the parties attended the mediation meetings on 18 th November 2024 at Migori law Courts. The Settlement Agreement report was apparently filed in court the same day, 18 th November 2024, which is comendable. The Settlement Agreement indicates all the parties executed the Settlement Agreement. It was adopted the next day by the court. The record does not show who moved the court to have the agreement adopted on the 19 th November 2024, as there is no other attendance, save for the court. Neither the parties nor their Advocates are indicated as present when the Settlement Agreement is being adopted.
10. In essence, it reverts back to whether there was a valid Mediation Settlement Agreement that could be acted upon by the parties. This being an agreement, it was not sufficient for the mediator to file the Settlement Agreement in court. The Appellant and Respondent and/or their Advocates were required to be present in court to confirm the contents of the agreement before the court could adopt the same. There was no invite for the parties to attend on 19 th November 2024. Further, there was no mention as scheduled on the 4 th December 2024, for the court to get the report on progress of the mediation.
11. Failure to have the parties and/or their Advocates present was fundamental error and breach of procedure by the trial court, before adopting the Settlement Agreement. No doubt it was undertaken in good faith. It thus follows that the adoption was not procedural and the Settlement Agreement cannot stand.
12. That being the case, it is unnecessary at this point to get into the merits of the ruling the subject of the appeal herein. The ruling was based on the presumption that a valid Settlement Agreement that was being challenged. I have found that there was none.
13. It is therefore appropriate that I dispose this appeal with the following orders:
ix. The ruling of the learned Magistrate dated 2 nd April, 2025 is set aside together with all the consequences thereto.
x. The Settlement Agreement dated 18 th November 2024 and adopted on the 19 th November 2024 is hereby set aside.
xi. The parties are at liberty to re-engaged before a different mediator or proceed with the full hearing of the suit.
xii. Pending (iii) above, the parties are restrained and directed to revert to the position as at 6 th November 2024, and await either the further directions of the trial court or the determination of the succession proceedings.
xiii. The costs of the appeal to be in the cause .
Dated, signed and delivered virtually via Microsoft Teams this 13 th day of August 2026.
HCCA NO. E124 OF 2025 PETER OKUNGU ABONGO VS PAUL OMONDI AWINO JUDGMENT Pg. 6
RULING.
1. This is an appeal from the ruling of Hon. A.C. Munyuny, Resident Magistrates delivered at Migori in Civil Suit CMCC Succession No. E090 of 2022 delivered on the 31 st of March 2025.
2. Briefly, these succession proceedings were initiated by the Appellant, Peter Okungu Abongo, after he cited Benard Odhiambo Awino and Margaret Adhiambo Awino, regarding the estate of the late George Awino Obuo. Margaret Adhiambo Awino is the widow of the deceased.
3. The matter proceeded and had reached the stage for Confirmation of the Grant of Letters of Administration, which had been issued on the 6 th of June 2022 to the Appellant, when a dispute arose on the mode of distribution. The Applicant/Respondent filed rhe application dated 14 th March 2023, seeking for the Grant of Letters of Administration to be revoked. The record indicates the parties made attempts to settle the matter out of court and at some point, they almost had an agreement. Unfortunately, thus was not to be and the parties eventually proposed to have the matter referred for mediation. This was done on the 2 nd October 2024.
4. On the 6 th November, 2024, the record indicates that both Counsel present before the court stated the report was not ready as the parties were yet to contact the mediator. The court then scheduled the matter for further mention on the 4 th December 2024 , to consider a progress report on the mediation. On the 19 th November 2024 , the record indicates that the court recorded a Full Settlement Agreement on the mediation, in the following terms:
i. That the parties agreed for the succession process to take place immediately.
ii. That the Applicant Paul Omondi Awino to be included in the list of family beneficiaries.
iii. That the Petitioner, Peter Okungu Abongo, the buyer to be allocated his portion of land measuring 0.06 Ha as reflected in the consent and position of residence.
iv. That parties agreed to inculcate peace and harmony throughout their stay .
5. By an application dated 10 th January 2025 , the Appellant sought to set aside the mediation settlement agreement and have the matter remitted for full hearing and determination. The application was supported by the grounds on the face of the application and the Supporting Affidavit of the Appellant sworn on the 10 th January 2025 , and the annexures thereto. The application was opposed by the Replying Affidavit of the Respondent sworn on the 30 th January 2025 . Both parties filed their submissions as directed by the court and the court delivered a reasoned ruling on the 2 nd April, 2025 .
6. The grounds upon which the Appellant had sought to have the Mediation Settlement Agreement set aside can be summarized as:
v. The Appellant did not sign the mediation agreement as he suffers from dementia and his signature was forged.
vi. That there was collusion between the Respondent and the mediator which led to a one sided agreement.
vii. The Appellant’s home has been curved out in the subdivision and auctioneers are likely to evict him from the portion he has set up his homestead and buried some of his deceased relatives .
viii. That the mediation agreement is null and void .
7. Having considered the application, the grounds and affidavit in support, the replying affidavit and the submissions of the parties, I deem there is only one issue for the court to determine. That is, if there is a valid Mediation Settlement Agreement, capable of being executed as a determination of the court.
Analysis and Determination .
8. As well set out in the ruling of the learned Magistrate, the provisions of the Civil Procedure (Court Annexed Mediation) Rules set out clearly under Rule 39 the grounds upon which a Mediation Settlement Agreement can be set aside. These are:
“ THE CIVIL PROCEDURE (COURT-ANNEXED MEDIATION) RULES provides; Rule 39.
Setting aside an order or decree arising out of a settlement agreement
(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.
(f) 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).
(g) The court shall hear and determine an application under this on priority basis within thirty days after filing .
9. Before embarking on the substance of the ruling under appeal, I have to consider what constitutes a Settlement Agreement, in the context of the court. The genesis of the dispute is that the court adopted the consent without the parties and therefore no proper consent is before the court. The Mediation Settlement Agreement was filed in court by the mediator. It shows the parties attended the mediation meetings on 18 th November 2024 at Migori law Courts. The Settlement Agreement report was apparently filed in court the same day, 18 th November 2024, which is comendable. The Settlement Agreement indicates all the parties executed the Settlement Agreement. It was adopted the next day by the court. The record does not show who moved the court to have the agreement adopted on the 19 th November 2024, as there is no other attendance, save for the court. Neither the parties nor their Advocates are indicated as present when the Settlement Agreement is being adopted.
10. In essence, it reverts back to whether there was a valid Mediation Settlement Agreement that could be acted upon by the parties. This being an agreement, it was not sufficient for the mediator to file the Settlement Agreement in court. The Appellant and Respondent and/or their Advocates were required to be present in court to confirm the contents of the agreement before the court could adopt the same. There was no invite for the parties to attend on 19 th November 2024. Further, there was no mention as scheduled on the 4 th December 2024, for the court to get the report on progress of the mediation.
11. Failure to have the parties and/or their Advocates present was fundamental error and breach of procedure by the trial court, before adopting the Settlement Agreement. No doubt it was undertaken in good faith. It thus follows that the adoption was not procedural and the Settlement Agreement cannot stand.
12. That being the case, it is unnecessary at this point to get into the merits of the ruling the subject of the appeal herein. The ruling was based on the presumption that a valid Settlement Agreement that was being challenged. I have found that there was none.
13. It is therefore appropriate that I dispose this appeal with the following orders:
ix. The ruling of the learned Magistrate dated 2 nd April, 2025 is set aside together with all the consequences thereto.
x. The Settlement Agreement dated 18 th November 2024 and adopted on the 19 th November 2024 is hereby set aside.
xi. The parties are at liberty to re-engaged before a different mediator or proceed with the full hearing of the suit.
xii. Pending (iii) above, the parties are restrained and directed to revert to the position as at 6 th November 2024, and await either the further directions of the trial court or the determination of the succession proceedings.
xiii. The costs of the appeal to be in the cause .
Dated, signed and delivered virtually via Microsoft Teams this 13 th day of August 2026.
HCCA NO. E124 OF 2025 PETER OKUNGU ABONGO VS PAUL OMONDI AWINO JUDGMENT Pg. 6