1.The issue herein is whether the Court should adopt a Court Annexed Mediation Settlement Agreement in full or whether the same should be set aside in its entirety or whether it should only be partially adopted. While the rest of the parties, including the Petitioner and the Objector, want the Agreement to be adopted in full, the Protester (Petitioner’s daughter) is opposing a portion thereof.
2.The background of the matter is that the deceased, Jacob Kibiwott Arusei died intestate on 23 01 1993 at the age of 67 years. Upon his death, on 2 10 2012 the Petitioner, as the widow, applied for a grant of Letters of Administration. She listed 10 survivors (among them the Protester, her daughter). The Grant was then issued to her on 13 05 2014.
3.However, on 16 02 2017, the Objector, claiming as a daughter-in-law to the deceased, filed a challenge claiming her late husband’s share and challenging her omission from the list of survivors. After protracted litigation, on 16 09 2022, the parties agreed to refer the dispute to Court Annexed Mediation. It is agreed that after Mediation sessions, the Mediator prepared a Mediation Agreement dated 4 11 2022 and forwarded it to this Court for adoption.
4.I have not managed to locate the Agreement in the Court file but the parties are in unanimity that the same is in existence. According to the parties, the Agreement provided that the mode of distribution of all the 5 properties comprising the estate had been agreed upon, that among the 5 properties, out of the one known as Nandi Kipkaren Salient 275 the Petitioner would get 16 acres and the Objector (Petitioner’s daughter) would get 4 acres. The remaining portion of this specific property would be shared amongst 7 other people.
5.Now before Court for determination is the Affidavit of Protest filed on 2 12 2022 by the Protester. She is represented herein by Messrs Rioba Omboto & Co. Advocates.
6.In the Affidavit, the Protester deponed that during the Mediation sittings, there was an agreement that out of the said property L.R. Nandi Kipkaren Salient 275, she would be given 10 acres since she was operating a project (milling factory) which requires over 10 acres, that on 4 11 2022 when she was not in attendance, the Mediator recorded a Mediation Agreement without her participation on the mode of distribution in which she was given 4 acres contrary to 10 acres as earlier agreed and that immediately and upon her instructions, her Advocates issued a protest letter to the Petitioner. She attached a copy of the Mediation Agreement but the same is not very legible.
Response to the Protest
7.The Protest is opposed vide the Replying Affidavit sworn by the Petitioner, and filed on 10 02 2023 through Messrs Kipkorir Cheruiyot & Kigen Advocates. She confirmed that the Protester is her daughter, pursuant to the Application filed by the Objector (her daughter-in-law) challenging her exclusion as a survivor, by the consent recorded on 16 09 2022 the parties consented to refer the matter to Mediation, on 4 11 2022 the parties attended the Mediation session, all the beneficiaries were present except the Protester who chose not to attend despite having been duly informed and notified, she lives together with the Protester and while the other parties were going for the session the Protester remained at home, at the Mediation session they agreed on the mode of distribution, since there was no objection from any person the Mediator recorded the Agreement, the Protester ought to have attended the session if indeed she had any objections, the Cause has been in Court for long hence the litigation ought to come to an end, and that she is elderly and wishes to see the conclusion of this matter.
Hearing of the Application
8.The matter was canvassed by way of written Submissions. Pursuant to directions given, the both the Protester and the Petitioner filed their Submissions on 27 02 2023. As aforesaid, the Objector, being satisfied with the Mediation Agreement, did not file any Submissions and neither did the rest of the other beneficiaries.
9.Counsel for the Objector submitted that the non-attendance by the Protester was neither deliberate nor intentional, she never willingly declined or failed to attend as alleged by the Petitioner, the Mediation procedure and principles is that during Mediation the Mediator would have reached the Protester personally before forwarding the same to the Judge for adoption, in a Mediation Agreement, “meeting of minds” arises upon execution of the Agreement, only when one signs does reason arise to believe that the party has read and understood the terms thereof, the Petitioner admits that the Agreement was signed in the absence of the Protester which clearly indicates that there was no “meeting of minds” by all the parties, the Agreement is therefore not binding on the Protester. Counsel cited the cases of Builders Limited v Vintage Investment Ltd & Another  eKLR, Flora N. Wasike v Destimo Wamboko  eKLR, Parcel vs F.C. Trigell Ltd (trading as Southern Window and General Cleaning Co. and Another  3 ALL ER as cited in Nairobi High Court Civil Case No. 21 of 2015, NKM vs SMM & Another  eKLR.
10.He also cited the case of Nairobi High Court Succession Cause No. 2129 of 2015 -consolidated with Succession Cause No. 1975 of 2015-In the Matter of the estate of BM (deceased) RMM vs RCM & 3 Others.
11.The Petitioner’s Counsel submitted that the Protester chose not to attend the Mediation session despite being duly informed, this is a Court of equity, fairness and justice, equity aids the vigilant and not the indolent, the spirit of Court Annexed Mediation is to reduce backlog of cases and to allow expedient disposal of cases, for the Applicant to elect not to attend the session is an abuse of the Court process, the Protester has not tendered any evidence to show that there was fraud, undue influence, coercion or intimidation in arriving at the Agreement. He cited the case of Re Estate of the late Adam Chebelieny Kibosia (deceased)  eKLR and added that the Protest is an afterthought meant to delay the conclusion of the matter.
Analysis and Determination
12.As aforesaid, the issue herein is whether the Court should adopt the Court Annexed Mediation Settlement Agreement in full or whether the same should be set aside in its entirety or whether it should only be partially adopted.
13.The process of Court annexed mediation is governed by the Judiciary of Kenya Practice Directions on Court Annexed Mediation issued by the Chief Justice pursuant to Article 159 of akn ke act 2010 constitution the Constitution and Section 59B (1) (a), (b) and (c) of the akn ke act 1924 3 Civil Procedure Act.
14.Article 159 (2)(c) of akn ke act 2010 constitution the Constitution of Kenya provides as follows: -
15.In tandem with the above, Section 59C of the Civil Procedure Rules provide as follows:
16.There is also Order 46 Rule 20 (1) of the Civil Procedure Rules which provides as follows:
17.In the case of In re Estate of BM (Deceased)  eKLR, Muchelule J (as he then was) stated as follows:
18.A Mediation Settlement Agreement once adopted as an order of the Court becomes a binding Agreement as between the parties and cannot be set aside unless the party challenging it proves that there are justifiable grounds that warrant its setting aside. Such vitiating factors are similar to those applicable to all other contracts or consent orders, including, fraud, misrepresentation, coercion and undue influence. In this instant case, the Court is yet to adopt the Agreement since the Protest was filed before adoption thereof. However, the same principles for setting aside the order, post-adoption, would still be applicable in a case where, as herein, the Court is being asked not to adopt the Agreement forwarded by the Mediator.
19.In respect to the grounds applicable in setting aside consent orders, Achode J (as she then was), in the case of NKM vs SMM &Anor  eKLR, put it as follows:
20.There is also the case of Flora N. Wasike v Destimo Wamboko eKLR where Hancox, JA, as he then was, observed as follows:
21.Similarly, in the English case of Purcel v. F. C. Trigell Ltd, (Trading as Southern Window And General Cleaning Co. And Another),  3 All Er671, the following was also stated:
22.Further, in Kenya Commercial Bank Ltd Versus Specialized Engineering Co. Ltd  KlR 485, Justice Harris pronounced himself as follows:
23.Having laid out the law as above, I may also mention that in this case, the parties involved, including beneficiaries of the estate, are more than 10. It is not disputed that, save for only the Protester, the rest all signed and embraced the Mediation Settlement Agreement.
24.Upon considering the matter, I find that insofar as the Protester never signed the Agreement, the same cannot bind her. It is true that the Protester’s conduct and failure to co-operate was not one that is admirable, she was informed of the Mediation session fixed for 4 11 2022 but still chose not to attend. If the entire Agreement were to be set aside, it would mean that so much judicial time will have been wasted simply because of the Protester’s conduct. This was a Court annexed mediation and it was therefore by order of the Court that the Protester was supposed to attend. Attendance was not therefore to be at the whims of any party.
25.As aforesaid, the family herein is a large one and the interested parties totaled to more than 10 people. All, except only the Protester, attended. The failure to attend, failure to send prior communication and failure to even send any apologies to the Mediator could well amount to acts in contempt of Court. Nevertheless, the law is that as long as the Protester did not sign the Agreement, the same cannot bind her.
26.In the said case of In re Estate of BM (supra), faced with a somewhat similar scenario, Muchelule J (as he then was) found as follows:
27.The Mediation dealt with the distribution of 5 estate properties in total. The only one in which the Protester has an interest or share is L.R. No. Nandi Kipkaren Salient 275. From my perusal of the pleadings, the property measures about 48 acres (approximately 20 hectares). In the Mediation Settlement Agreement forwarded by the Mediator, this property was to be shared out among 9 people. My understanding of the Protester’s grievance is that out of the said 48 acres, 20 acres was reserved to be shared between the Petitioner and the Protester (mother and daughter).
28.According to the Protester, her understanding was that the 20 acres reserved for her and the Petitioner in the property L.R. No. Nandi Kipkaren Salient 275 was to be shared equally at 10 acres for the Petitioner and 10 acres for the Protester, and that this is what she expected to be captured in the Agreement. Her complaint is that in the Agreement, the Petitioner was allocated 16 acres while the Protester was allocated only 4 acres.
29.It is therefore evident that the dispute does not involve the rest of the people who signed the Agreement and that the dispute is only between the Petitioner and the Protester. For the rest, they are all satisfied and contented with the Agreement. Further, the dispute between the Petitioner and the Protester only relates to one property, namely, L.R. No. Nandi Kipkaren Salient 275. Considering the matter holistically therefore, I do not think that it will be justified to hold everyone else who has signed the Agreement at ransom. For the rest, the Agreement should be adopted as forwarded and they be allowed to proceed with partial confirmation of the Grant.
30.Concerning the dispute as between the Petitioner and the Protester, it is only fair that they litigate their dispute and for the Court to then determine it after hearing them.
31.In the premises, the Protest filed by the said Perez Arusei (Protester) vide the Affidavit of Protest sworn on 21 11 2022 and filed in Court on 2 12 2022 succeeds to the following extent: