Wesonga v Wesonga & another (Environment and Land Appeal E060 of 2024) [2026] KEELC 3912 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court was wrong in dismissing the appellant's application dated 19th June 2024
- 2.Whether the appellant had met the threshold for grant of leave to apply to set aside the mediation settlement agreement
- 3.Whether the titling of the trial court's decision as a judgment instead of a ruling constituted a ground of appeal
- 4.Whether the appellant should bear costs given the family relationship between the parties
Key legal issues
#Threshold for leave to set aside a mediation settlement agreement under Rule 39
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
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.
Nature of a mediation settlement agreement
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
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.
Whether the mediation agreement was invalid or unenforceable under the Land Registration Act
No; no findings were made by the mediator and no law was breached; the settlement was fair and enforceable
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.
Whether the titling of the trial decision as a judgment was a ground of appeal
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
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.
Costs in family disputes
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
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs to the respondents
- 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.The appellant to bear the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
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
Costs
Appeal dismissed with costs to the respondents; the appellant to bear the costs of the appeal.
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.
The upshot is that I find no merit in this appeal which I hereby dismiss with costs to the respondents.
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.
A settlement is essentially a contract and to set it aside the grounds for setting aside a contract must be demonstrated.
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.
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
Issues in the judgment
#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
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)
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.