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ELCStruck OutELCLC No. 21 of 2021

Peter Okore Ondu (Substituted by Mathew Obunga Okore) v Pius Din (Substituted by Monica Mugoya), Joseph Mboya & Simon Ondu

Environment and Land Court
23 September 2026
1,103 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out an attempt to undo a mediated land settlement because the applicants never got the court's permission required before filing.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kakamega (A. Nyukuri, J) on a Notice of Motion dated 21st January 2026 in which the defendants sought to set aside the consent and consequential orders adopting a mediation agreement in this long-running land dispute over Kakamega/Shambarere/1233, and to compel the plaintiff's family to vacate 2.5 acres of that land within sixty days. The 1st defendant, a 95-year-old widow, deponed that the mediation agreement required her to receive 1.5 acres within the Efuetere locality not more than 15 kms away, that the land sourced by the plaintiff at Butsotso/Ingotsi breached those terms, and that she no longer wished to pursue the agreement. The plaintiff opposed, showing substantial compliance by obtaining Butsotso/Ingotse/4104 for transfer, noting the defendants' own non-compliance, an earlier dismissed application by the 3rd defendant on 25th April 2023, and the requirement of leave under Rule 39(1) of the Court-Annexed Mediation Rules. The court framed three issues: res judicata, competence for want of leave, and the threshold for setting aside. It held the application was not res judicata because the prior application sought leave while the present one sought setting aside directly. However, finding no leave of court had been sought or obtained as Rule 39(1) mandates, the court struck out the application as incurably incompetent, with costs to the plaintiff. The merits of the setting-aside grounds were not reached.

Questions the Court framed

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

  1. 1.Whether the application dated 21st January 2026 is res judicata
  2. 2.Whether the application dated 21st January 2026 is incompetent for want of leave of court
  3. 3.Whether the applicants have met the threshold for setting aside a mediation agreement

Key legal issues

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01

Res judicata given the earlier dismissed application of 29th December 2022

Holding

Not res judicata: the earlier application sought leave to set aside the mediation agreement, whereas the current application seeks the setting aside itself, so the issues differ

Reasoning

Section 7 of the Civil Procedure Act bars re-litigation of issues directly and substantively in issue between the same parties already determined on merit. The 29th December 2022 application by the 3rd defendant sought leave to apply to set aside the mediation agreement and was dismissed on merit. The present application does not seek leave; it directly seeks to set aside the agreement. The issues therefore differ and res judicata does not apply.

p. 7
02

Competence of the application for want of leave of court

Holding

The application is incurably incompetent and struck out because no leave of court was sought or obtained before filing it

Reasoning

Rule 39(1) of the Civil Procedure (Court-Annexed Mediation) Rules, 2022 mandates that no application for setting aside an order or decree arising from a mediation settlement agreement shall be filed except with leave of court. The applicant conceded or did not demonstrate that leave was obtained. The plaintiff pointed out this requirement in opposition. Since the condition precedent was not met, the court did not reach the merits of whether grounds for setting aside were established.

p. 7

Legal principles established

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  • An application to set aside an order or decree arising from a mediation settlement agreement must first obtain leave of court under Rule 39(1); filed without leave it is incurably incompetent and liable to be struck out

Court orders

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  1. 1.The application dated 21st January 2026 is struck out with costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; Civil Procedure (Court-Annexed Mediation) Rules, 2022

Relief refused

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Setting aside/vacating the consent and consequential orders adopting the mediation agreement

Application incompetent for want of leave of court under Rule 39(1) of the Court-Annexed Mediation Rules

p. 7

Order that the plaintiff and family vacate 2.5 acres of Kakamega/Shambarere/1233 within 60 days

Fell with the striking out of the incompetent application

Costs

Costs of the application awarded to the plaintiff - the application was struck out 'with costs'

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.

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. 7Statutory requirement of leave under Rule 39(1)
I therefore, find and hold that the application dated 21st January 2026 is incurably incompetent and the same is hereby struck out with costs
p. 7Final order striking out the application
the issue in dispute now is different from the issue raised in the application dated 29th December 2022, therefore, the instant application is not res judicata
p. 7Res judicata distinguished
section 7 of the civil Procedure Act bars a court from trying an issue or a suit raising directly and substantively the same issue between the same parties as those in a suit which has already been determined on merit by a court of competent jurisdiction
p. 6Doctrine of res judicata

Issues in the judgment

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minor

Application dated 21st January 2026 supported by affidavit sworn 24th November 2025 - affidavit predates application

minor

Judgment date (23rd September 2026) follows replying affidavit dated 3rd June 2026 and submissions of 13th August 2026 - chronology internally consistent but application date precedes sworn affidavit is anomalous

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, "Peter Okore Ondu (Substituted by Mathew Obunga Okore) v Pius Din (Substituted by Monica Mugoya), Joseph Mboya & Simon Ondu", Case Analysis (2026). ELCLC No. 21 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6031/eng@2026-09-23

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