Koinange Investment and Development Limited v Nairobi City County Government & another (Environment & Land Case 244 of 2023) [2025] KEELC 68 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed an attempt to halve court-ordered payments, confirming consent agreements can only be changed on narrow, serious grounds.
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 Applicant has established and demonstrated force majeure as a basis for review of the consent Decree.
- 2.Whether the Applicant herein can invoke and rely on the Doctrine of frustration to review and vary a portion of the consent or otherwise.
Key legal issues
#Whether force majeure was established as a basis for review of the consent decree
Force majeure cannot be invoked because it was not provided for as a term in the consent.
Relying on the Supreme Court decision in Kwanza Estates Limited v JKUAT, the court held that force majeure is enforceable only when explicitly stated in a contract. The consent entered into by the parties on 15th December 2023, which had contractual effect, did not envisage or provide for the application of force majeure. Consequently, the doctrine could not be invoked to excuse performance, notwithstanding the alleged impact of the June and July 2024 protests on the Applicant's finances.
Whether the doctrine of frustration could be invoked to review and vary a portion of the consent
The doctrine of frustration is irrelevant and inapplicable because it discharges a contract in its entirety, not a portion of it.
Citing the Supreme Court in Kwanza Estates, the court noted that frustration brings a contract to an immediate and definitive end and that partial or temporary discharge is rejected in common law. The Applicant sought relief from only a segment of the consent (reduction of monthly instalments), not termination of the entire contract. Additionally, the Applicant failed to demonstrate how the supervening events impacted her financial capacity to perform.
The grounds upon which a consent judgment or decree may be reviewed or varied
A consent can only be reviewed or varied on circumscribed grounds equivalent to those vitiating a contract, none of which were established.
The court drew on Brooke Bond Liebig Ltd v Mallya, Samuel Mbugua Ikumbu v Barclays Bank Kenya Ltd and East African Portland Cement v Superior Homes Ltd (citing Hirani v Kassam), holding that variation of a consent judgment is only permissible on grounds such as fraud, collusion, illegality, mistake, agreement contrary to public policy, or absence/ignorance of sufficient material facts. The Applicant failed to establish any of these grounds or a compelling reason for review.
Legal principles established
#- Before a party can invoke force majeure, it must be explicitly provided for in the contract as a term.
- The doctrine of frustration operates on the totality of a contract and cannot be used to discharge a party from only a portion of its obligations.
- A consent judgment or decree can only be reviewed or varied on the same grounds as would vitiate a contract.
- A court cannot interfere with a consent judgment except on grounds that would afford good ground for varying or rescinding a contract between the parties.
Court orders
#- 1.The Application dated the September 25, 2024, be and is hereby dismissed.
- 2.Costs of the application be and are hereby awarded to the Respondent.
- 3.The costs in terms of clause (ii) herein above be and are hereby assessed and certified in the sum of kes.30, 000/= only.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 45 Rules 1 and 2 of the Civil Procedure Rules 2010; Section 80 of the Civil Procedure Act; Articles 48 and 159 of the Constitution 2010
Relief refused
#Review and/or variation of Clause 3(b) of the Decree to allow payment of Ksh. 500,000 per month instead of Ksh. 1,000,000 for twelve months
The Applicant failed to demonstrate force majeure was provided for in the consent, the doctrine of frustration cannot apply to a portion of a contract, and the circumscribed grounds for varying a consent judgment were not met
Costs
Costs of the application awarded to the Respondent, assessed and certified in the sum of kes.30,000/= only.
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 Application dated the September 25, 2024, be and is hereby dismissed.
Costs of the application be and are hereby awarded to the Respondent.
The costs in terms of clause [ii] herein above be and are hereby assessed and certified in the sum of kes.30, 000/= only.
it is crystal clear that the parties did not envisage the applicability of force majeure. Simply put, the parties did not provide for its application and invocation in the Consent under reference.
the doctrine of frustration impacts upon the totality of the contract and not part of the contract in the manner adverted to by the Applicant.
a consent judgment and/or decree, like the one beforehand, can only be reviewed and/or varied on the same terms for review and/or variation of a contract.
Issues in the judgment
#The judgment does not state the case title/number of the suit in which the application was brought; only the application date is given, and the respondents are referred to only as 'Defendants/Respondents' without names.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koinange Investment and Development Limited v Nairobi City County Government & another (Environment & Land Case 244 of 2023) [2025] KEELC 68 (KLR)", Case Analysis (2025). Notice of Motion dated September 25, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/68/eng@2025-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.