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The Ex-parte application herein filed the motion dated dated 23.7.25 seeking to set aside the mediation agreement dated 26.3.25 adopted as Judgment of this court on 8.5.25 on the grounds that the respondent breached clause (a)of the same which required them to pay the first instalment of Ksh. 3,001, 753.97 on or before 30.6.25 .
The respondents did not respond to the application but when the application came up for directions on 16.9.25 counsel for respondents told this court that the delay was caused by the fact that the National Treasury has not disbursed funds to the counties and the implementation of the new EGP System .
3. This court takes Judicial notice that the new E-GP System came into force on 1.7.25 while the respondents were to pay the 1 st instalment on by 30.6.25 which was in the last financial year. The debt herein also accrued in the year 2014 as stated by counsel for the ex-parte applicant . The respondents have defaulted applicants. Rule 39 (3) of the court annexed mediation Rules provides :
(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. The application herein does not meet the threshold for setting aside of a mediation agreement. As the grounds set in rule 39 (3) of the rules have not been satisfied . The agreement also did not have a clause indicating that incase of default the agreement be set aside and execution of the entire amount to issue .
5. The respondents still have a duty to satisfy the decree despite the alleged systemic challenges due tO the age of the decree and the fact that judgment herein was entered before the E-GP system was effected . The recourse of the Ex-parte applicant would be to proceed to execute for the 1 st instalment of which the respondents have defaulted and further instalments in case of default on the4 other instalments .
The application is disallowed .
T.A ODERA
JUDGE
19.9.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF :
MISS NYAMWAYA FOR THE RESPONDENT. N/A FOR EXPARTE APPLICANT .
CA : KIPCHIRCHIR
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The Ex-parte application herein filed the motion dated dated 23.7.25 seeking to set aside the mediation agreement dated 26.3.25 adopted as Judgment of this court on 8.5.25 on the grounds that the respondent breached clause (a)of the same which required them to pay the first instalment of Ksh. 3,001, 753.97 on or before 30.6.25 .
The respondents did not respond to the application but when the application came up for directions on 16.9.25 counsel for respondents told this court that the delay was caused by the fact that the National Treasury has not disbursed funds to the counties and the implementation of the new EGP System .
3. This court takes Judicial notice that the new E-GP System came into force on 1.7.25 while the respondents were to pay the 1 st instalment on by 30.6.25 which was in the last financial year. The debt herein also accrued in the year 2014 as stated by counsel for the ex-parte applicant . The respondents have defaulted applicants. Rule 39 (3) of the court annexed mediation Rules provides :
(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. The application herein does not meet the threshold for setting aside of a mediation agreement. As the grounds set in rule 39 (3) of the rules have not been satisfied . The agreement also did not have a clause indicating that incase of default the agreement be set aside and execution of the entire amount to issue .
5. The respondents still have a duty to satisfy the decree despite the alleged systemic challenges due tO the age of the decree and the fact that judgment herein was entered before the E-GP system was effected . The recourse of the Ex-parte applicant would be to proceed to execute for the 1 st instalment of which the respondents have defaulted and further instalments in case of default on the4 other instalments .
The application is disallowed .
T.A ODERA
JUDGE
19.9.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF :
MISS NYAMWAYA FOR THE RESPONDENT. N/A FOR EXPARTE APPLICANT .
CA : KIPCHIRCHIR
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