REGISTRATION & ENFORCEMENT OF PRIVATE MEDIATION AGREEMENTS  (PMA) 

In Kenya, PMA’s binding principle is given legal backing through ordinary contracts and  Section 59D of the Civil Procedure Act. 

Section 59D provides that all private mediation agreements entered into with the  assistance of qualified mediators shall be in writing and may be registered and enforced  by the court by coercing parties to carry out their end of the bargain where they  previously failed to.  

The Court Annexed Mediation Rules, 2022 provide for Private Mediation Agreements. 

Parties can now forward private mediation agreements for registration and enforcement  without having to file pleadings as they would have to in the adversarial process. 

Under Rule 45 of the New Court Annexed Mediation Rules, 2022, A private settlement  agreement entered into by the parties with the assistance of a qualified mediator may be  presented at the mediation registry for purposes of registration and adoption by the  court. Mediation registry to register private settlement agreements.  

Requirements for the registration of a private settlement agreement as provided for  under Rule 46 of the New Court Annexed Mediation Rules, 2022 

The settlement agreement must have; 

1. a) Been reached with the assistance of a qualified mediator or mediators who should  endorse his or her or their accreditation or other identifying number thereon; b) Relate to a dispute that is not the subject of a pending court case;  c) Relate to a dispute capable of being resolved by mediation under Kenyan or  international law; 
2. d) Not be illegal;  
3. e) be capable of being enforced by the court under Kenyan or international law; f) be reduced into writing in the language of the court; 
4. g) Be dated and signed by the mediator, each of the parties to the dispute, and the  parties’ advocates or representatives, if any; 
5. h) Indicate the place where the mediation took place and where the settlement  agreement was signed;  
6. i) Have resolved all the issues in dispute; and 
7. j) Indicate concisely the nature of the dispute, the issues involved, and the settlement  agreement thereupon.  

Presentation for registration (rule 47) 

1. A private settlement agreement may, within thirty days after it has been signed be  presented by the mediator for registration to the nearest mediation registry where  it was concluded.  
2. The private settlement agreement shall be presented to court for registration as an  annexure or attachment to an affidavit duly sworn by the mediator.  3. The said affidavit shall with necessary modification, be in Form 15 as set out in the  Schedule and should among other things indicate— 
3. a) That the person presenting was a mediator in the dispute and witnessed the  execution of the private settlement agreement; 
4. b) That the mediation process, including the execution of the private settlement  agreement, was voluntary; 938 Kenya subsidiary legislation, 2022 
5. c) That the private settlement agreement complies with the requirements set out at  rule 46; and 
6. d) That the private settlement agreement is not, or is likely not to be, affected by the  grounds for setting aside of a settlement agreement under rule 39. 

Registration of private settlement agreements (rule48) 

1) Where a mediator presents a private settlement agreement for registration under  rule 47, a court officer designated for that purpose shall endorse the affidavit, the  settlement agreement, and any annexures thereto with a stamp of the court. 

2) The assessment of the payable filing fees shall be done in accordance with the scale  for the time being applicable to fees chargeable for filing affidavits in other court  cases. 

3) Each private settlement agreement shall, upon filing, be serialised and registered  in the register of private settlement agreements kept and maintained for that  purpose.  

Recognition of private settlement agreements(rule49) 

Each private settlement agreement presented and registered under this Part shall be  recognized by the court and form part of the record of the court. 

Enforcement of private settlement agreements (rule 50) 

1) Where a party to a private settlement agreement that has been registered under  rule 48 wishes to have the agreement enforced by execution or otherwise, he or  she shall apply to the court in Form 16 as set out in the Schedule indicating the  intention to do so.  

2) The registry shall, upon receiving the application under sub rule 1, open a separate  file for the private settlement agreement.  

3) The file opened under sub-rule (2) shall be placed before the court within fourteen  days for adoption.  

4) The court may order that other parties or the mediator be served, or that the  applicant or other party be heard or examined on oath before adopting the private  settlement agreement, or make such order as it may deem necessary.  

5) Where the court is satisfied that the private settlement agreement is duly signed  meets the conditions specified in rule 46, the court may adopt it as a judgment of  the court and issue an order or decree in the terms of the agreement.  

6) A party who executed a private settlement agreement but who was not heard  before its adoption by the court, or any other affected party, may, with leave of  court, apply to set aside the adoption proceedings or resultant orders. 

7) An aggrieved party may, within fourteen days, appeal against the order of the  court made under sub-rule (6) but no appeal shall against the private settlement  agreement itself or the contents thereof. 

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