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ELCDismissedMumias PM ELC Case No. E015 of 2023 (appeal against ruling of 19th September 2024)

Wesonga v Wesonga & another (Environment and Land Appeal E060 of 2024) [2026] KEELC 3912 (KLR)

Environment and Land Court
17 June 2026
4,981 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that once you sign a mediation settlement agreement, you can only escape it with court leave and proof of a strong contractual reason.

What this practically means

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Executive summary

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Ismael Kassim Wesonga appealed against the ruling of Honourable Mercellla A. Onyango (SRM) of 19th September 2024 in Mumias PM ELC Case No. E015 of 2023, which dismissed his application for leave to set aside a mediation settlement agreement dated 31st October 2023 that had been adopted as the court's judgment on 23rd November 2023. The underlying suit concerned parcels E/WANGA/MUNGÁNGÁ/967 and 969, formerly registered in the name of his grandmother, the late Anah Khawoya Odinga, whom the respondents alleged held the land in trust for her daughters. The mediation agreement allocated equal shares to the four daughters and one acre to the appellant. The court identified the single issue as whether the appellant met the Rule 39 threshold for leave to set aside the agreement. The court held that the settlement was a contract of the parties, not a decision of the mediator, that the mediator was not obliged to apply the Land Registration Act or test evidence, and that the alleged mistake, misrepresentation and invalidity grounds failed because all matters were within the appellant's knowledge when he voluntarily signed and later sought to implement the agreement. On costs, the court held that family relationships do not automatically attract an each-party-bears-own-costs order, finding the appellant's application vexatious and an abuse of process given his inconsistent positions. The titling of the ruling as a judgment was a registry clerical error rectifiable under section 99 of the Civil Procedure Act, and the trial court was directed to correct it. The appeal was dismissed with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court was wrong in dismissing the appellant's application dated 19th June 2024
  2. 2.Whether the appellant had met the threshold for grant of leave to apply to set aside the mediation settlement agreement
  3. 3.Whether the titling of the trial court's decision as a judgment instead of a ruling constituted a ground of appeal
  4. 4.Whether the appellant should bear costs given the family relationship between the parties

Key legal issues

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01

Threshold for leave to set aside a mediation settlement agreement under Rule 39

Holding

The appellant failed to demonstrate a prima facie case; the alleged mistake, misrepresentation and invalidity grounds were unestablished and the matters were within his knowledge at execution

Reasoning

Rule 39 requires leave, granted only where the applicant demonstrates a prima facie case of mediator misconduct, fraud or fundamental mistake; fraud, collusion or misrepresentation by another party; fundamental mistake as to the subject matter; legal incapacity; or invalidity or unenforceability. The appellant voluntarily signed the agreement, did not allege coercion, undue influence or fraud, and later sought to implement the agreement, showing the matters were known to him at execution.

p. 20
02

Nature of a mediation settlement agreement

Holding

It is a contract between the parties, not a decision of the mediator, and cannot be attacked on the footing that the mediator erred in law

Reasoning

The court explained that a mediator merely facilitates dialogue and has no authority to impose a resolution; the mediator was not applying sections 24, 25, 26 and 28 of the Land Registration Act, was not determining trust, and made no findings. To set aside a settlement, contractual grounds must be demonstrated. The appellant's complaints that the mediator failed to test evidence or apply the law were therefore baseless.

p. 17
03

Whether the mediation agreement was invalid or unenforceable under the Land Registration Act

Holding

No; no findings were made by the mediator and no law was breached; the settlement was fair and enforceable

Reasoning

The appellant's reliance on sections 24, 25, 26 and 28 of the Land Registration Act was misplaced because the suit was resolved by agreement, not trial, so trust did not need proof. The agreement granted the appellant one acre while other grandsons got nothing, so it favoured him and was not unfair or unconscionable. Enforcement is possible through execution of transfer documents or by the Executive Officer of the trial court.

p. 23
04

Whether the titling of the trial decision as a judgment was a ground of appeal

Holding

No; it was a clerical mistake by court registry staff in uploading the ruling on the CTS, rectifiable under section 99 of the Civil Procedure Act

Reasoning

The hard copy of the ruling was correctly titled as a ruling on the application dated 19th June 2024. What was uploaded on the CTS as a judgment was only part of the ruling, an error attributable to the registry. Such a clerical mistake cannot form the basis of an appeal and the trial court was directed to upload the entire ruling as a ruling.

p. 26
05

Costs in family disputes

Holding

Costs follow the event under section 27 of the Civil Procedure Act; family relationship does not automatically entitle a party to an order that each party bear own costs, particularly where the application was vexatious and an abuse of process

Reasoning

The appellant approbated and reprobated, treating the respondents as family when convenient and denying they were of his clan when convenient. Having voluntarily signed the agreement and sought its implementation, his fresh application against his aunties was vexatious and an abuse of the court process, justifying costs against him both in the trial court and on appeal.

p. 27

Legal principles established

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  • An application to set aside an order or decree arising from a mediation settlement agreement may only be filed with leave of court, granted where a prima facie case under Rule 39(3) is demonstrated
  • A mediation settlement agreement is a contract of the parties, not a decision of the mediator, and grounds for setting aside a contract must be demonstrated
  • A mediator does not decide the dispute or apply statutes like the Land Registration Act; mediation is not a trial
  • That a case involves family members is not an automatic ground for each party bearing own costs
  • A first appellate court reanalyzes the record and determines whether the trial court's conclusions should stand

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents
  2. 2.The trial court is directed to correct the error by uploading the whole ruling of the trial court on the CTS as a ruling and not as a judgment
  3. 3.The appellant to bear the costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Mumias (PM ELC)
Mumias PM ELC CASE NO. E015 OF 2023
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's ruling under the Civil Procedure Act; challenge to leave to set aside a mediation settlement agreement under Rule 39 of the Civil Procedure (Court Annexed Mediation) Rules, Legal Notice 145 of 2022

Relief refused

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Leave to file an application to set aside the mediation agreement dated 31st October 2023

No prima facie case under Rule 39(3); the matters raised were within the appellant's knowledge when he signed the agreement, and the settlement was a contract of the parties, not a mediator's decision

p. 25

Setting aside or varying the trial court's costs order

The appellant's application was vexatious and an abuse of process since he had voluntarily signed the mediation agreement and sought its implementation

p. 28

Substitution with an order that each party bear their own costs

Involvement of family members is not an automatic basis for each party bearing own costs where a family member files a vexatious matter

p. 27

Costs

Appeal dismissed with costs to the respondents; the appellant to bear the costs of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot is that I find no merit in this appeal which I hereby dismiss with costs to the respondents.
p. 28Final orders - dismissal of the appeal
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.
p. 18Rule 39 - leave requirement
A settlement is essentially a contract and to set it aside the grounds for setting aside a contract must be demonstrated.
p. 25Nature of mediation settlement agreements
The mere fact that a case involves family members is not an automatic basis for an order that each party should bear its own costs.
p. 27Costs in family disputes
This being a first appeal the role of this court is to reanalyze the record and determine whether the conclusions reached by the trial court should stand or not and give reasons either way
p. 14Duty of first appellate court

Issues in the judgment

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minor

Delivery date appears as 17th June 2026, which postdates the appeal memorandum of 30th September 2024 and submissions of August/September 2025; the year may be a typographical error for 2025

minor

The judgment inconsistently renders the deceased's name as 'Anah Khawoya Odinga' and 'Anahh Khaoya Odinga' and lists the suit parcels with a stray accent (MUNGÁNGÁ)

minor

Paragraph 9 refers to a preliminary objection by the plaintiffs but the ruling outcome addresses only the merits of the leave application; the objection's fate is not separately recorded

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wesonga v Wesonga & another (Environment and Land Appeal E060 of 2024) [2026] KEELC 3912 (KLR)", Case Analysis (2026). Mumias PM ELC Case No. E015 of 2023 (appeal against ruling of 19th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3912/eng@2026-06-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.