Busienei & 29 others v Kipkeibon Estates Limited (Environment & Land Case 22 of 2022) [2025] KEELC 657 (KLR)
The bottom line
#A signed mediation settlement adopted as a court order ended this Kenyan land dispute — the applicants offered no proof of fraud, so the court refused to reopen it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the instant application is merited (whether the mediation settlement agreement conclusively determined the issues in this suit)
- 2.What orders can the court issue herein, to meet the ends of justice
Key legal issues
#Whether the Mediation Settlement Agreement dated 12th September 2019, adopted as a court order on 7th October 2019, conclusively determined all substantive issues
Yes. The agreement recorded that the respondent was in occupation and possession of the disputed 120 acres since 5th February 1982, was signed by the parties and adopted as a court order. Only costs remained, dealt with in the ruling of 31st October 2024.
The court perused the record and found two partial mediation agreements: the first acknowledged a dispute over 120 acres, while the second recorded the respondent's possession of that land since 5th February 1982. The second agreement was duly signed and adopted as a court order. No evidence of fraud or illegality was placed before the court to impeach the consent, and the subsequent ruling of 31st October 2024 confirmed that only costs remained outstanding, against which no appeal was preferred.
Whether the court is functus officio
Yes, save for the issue of costs; all substantive issues were determined by the mediation settlement adopted as an order of the court and the ruling of 31st October 2024.
The defendant argued, and the court accepted, that the mediation settlement of 12th September 2019, adopted as an order on 7th October 2019, conclusively determined the dispute. The court's own ruling of 31st October 2024 directed parties to file submissions only on costs. Having pronounced itself on all substantive aspects, the court lacked jurisdiction to reopen the suit for viva voce hearing on the 120 acres.
Legal principles established
#- A court will not interfere with a consent judgment or consent order except on grounds that would justify varying or rescinding a contract, such as fraud, collusion or agreement contrary to the policy of the court
- Litigation must come to an end
Court orders
#- 1.Dismissal of the Notice of Motion dated 14th November 2024
- 2.Costs of the application to the defendant in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Relief refused
#Order that the matter proceed to viva voce hearing on the outstanding dispute of 120 acres
All substantive issues were conclusively determined by the Mediation Settlement Agreement adopted as a court order on 7th October 2019; the applicants showed no fraud or illegality to impeach it, and the court is functus officio save for costs
Costs
Dismissed with costs in the cause
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Wherefore, I find that the application lodged by way of Notice of Motion dated 14th November 2024 lacks merit. I proceed to dismiss the same with costs in the cause.
To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the policy of Court.
To my mind, all the substantive issues raised herein were determined, except the issue of costs as held in this court’s ruling dated 31st October 2024 against which no appeal has been preferred.
Issues in the judgment
#The record of the application's prayers shows prayers (a) and (b) as 'Spent', leaving only two live prayers; the party names/case number are not printed on the record excerpt
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Busienei & 29 others v Kipkeibon Estates Limited (Environment & Land Case 22 of 2022) [2025] KEELC 657 (KLR)", Case Analysis (2025). Not stated in the judgment (Originating Summons dated 12th May 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/657/eng@2025-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.