Joseph Malit Naeku & 60 others v Nkurunnah Ole Masikonde & 7 others [2021] KEELC 2896 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAROK

ELC NO. 44 OF 2017

JOSEPH MALIT NAEKU & 60 OTHERS.......................PLAINTIFFS

-VERSUS-

NKURUNNAH OLE MASIKONDE & 7 OTHERS.....DEFENDANTS

RULING

By a Notice of Motion dated 30/11/2020 and brought pursuant to Article 50 and 159(2) of the Constitution of Kenya 2020 and under Order 1A,1B,3A and 63(e) order 40 Rules 1, 2 and 3 seeking to stay and suspend the mediation undertaken by the Deputy Commissioner Narok North Sub-County and further to expunge, set aside or vary the orders given on 29/9/2020.

The application is based on the grounds that the appointment of the mediator offends section 59 (3) of the Civil Procedure Rules as it was done suo moto and that the appointed mediator is not accredited mediator and is not in the list of the court list of mediators and that he did not have terms of reference to guide him and that the mediator had delved into other extraneous issues and that the National Land Commission had an award previously and there the same was res judicata the application was further supported by the affidavit of the 1st Defendant/Applicant in which he stated that the court without an prompting  ordered the matter herein to be mediated by the Deputy Commissioner Narok North Sub-County and that the said order was made without any jurisdiction and that the court could not appoint an authority that is qualified to carry out any mediation.

The Application was opposed by the respondent through a replying affidavit that was sworn by one Francis Masikonde the 6th Respondent in which he stated that the instant application is only meant to delay Justice since the applicant did not raise any objection when the mediation committee was formed and only raised the issues herein after the committee visited the suit land compiled a report and submitted the same to court.  He further stated that each member was given an opportunity to be heard and all parties had made their representation accordingly.

I have considered the Application before court and I must state from the order that the applicants are misleading to inusuate that the mediator herein was appointed suo moto without any prompting.  From the record it is clear that the orders to appoint the mediator was made after the court was informed by the parties and confirmed by the court that indeed they were related and whereupon they all agreed to submit themselves that the mediator and area chief to find a lasting solution to the issue between them.

However, the Applicant herein wishes to repudiate the agreement and have the entire mediation stayed and or suspended.  I must state that the application for the mediator was made in good faith and when a party seeks to disengage itself from the process and want to topido  the process the court’s hands are tied and  I will not force a party to engage in such mediation without their will and that being the case I find it reasonable to halt the entire process and I consequently vary my orders of 16/12/2020 and expunge the proceedings of the said date and any report that was filed by the said mediator.

As to costs I direct that each party shall bear the costs of this application.

I further direct that the parties herein do appear in court on 5/10/2021 for further directions.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK ON THIS 10TH DAY OF JUNE, 2021

MOHAMMED N. KULLOW

JUDGE

10/6/2021

In the presence of:-

CA:Chuma

Ms Karia holding brief for Agina for the defendant

N/A for the plaintiff

MOHAMMED N. KULLOW

JUDGE

10/6/2021