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ELCPartially AllowedEnvironment and Land Civil Miscellaneous Application (Nairobi) in respect of the application dated 28/12/24· [2025] KEELC 3498 (KLR)

Horeria v Murigi (Environment and Land Miscellaneous Application E001 of 2025) [2025] KEELC 3498 (KLR)

Environment and Land Court
28 April 2025
JKJ. G. Kemei
3,382 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court allowed the land buyer's application to complete the transfer, but made him pay costs because he delayed for over a decade in honouring a binding settlement.

What this practically means

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Executive summary

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This was an application dated 28/12/24 in the Environment and Land Court at Nairobi arising from a long-running sale of land dispute over LR No.20528/LR 66365, Garden Estate, Nairobi. The parties contracted in 1996 for Kshs 10.5 Million; after litigation, a consent judgment was entered in the Court of Appeal on 21/2/2013 requiring the Applicant to pay the Respondent Kshs 9.5 Million within 90 days, upon which the Respondent would release all registrable transfer documents including the original grant. The Applicant sought vacation orders, an order to deposit Kshs 6,903,246/- (being Kshs 9.5 Million less rates and rent deductions), an order compelling the Respondent to execute transfer documents, an order for the Deputy Registrar to execute documents in default, and a mandatory injunction. The Respondent opposed, arguing the Applicant was in default of the consent judgment for nearly a decade, had no audience, and that the court lacked jurisdiction to vary a consent of the Court of Appeal. The court held a consent judgment has contractual effect, but found the variation issue had fallen away since the Applicant acknowledged and offered the full Kshs 9.5 Million. It found both parties had acquiesced in the decade-long delay. The court allowed the application but condemned the Applicant to pay its costs. A further order under Section 99 of the Civil Procedure Act corrected paragraph 1(a) on 2/5/2025.

Key legal issues

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01

Whether the application amounts to a variation of the Court of Appeal consent judgment

Holding

The application no longer seeks variation because the Applicant acknowledged the full sum of Kshs 9.5 Million; the issue of variation does not arise

Reasoning

During the pendency of the application the Applicant, through counsel, offered in letters dated 7/2/25 and 10/2/25 to forgo the outgoings deductions and pay the full Kshs 9.5 Million, and sworn a further affidavit on 21/2/25 acknowledging the debt. The court held the consent judgment remained intact and binding.

p. 5
02

Whether the parties acquiesced to the delay in complying with the consent judgment

Holding

Both parties acquiesced: the Applicant failed to comply for over a decade while the Respondent took no step to execute the judgment

Reasoning

The court applied the Halsbury definition of acquiescence and found no evidence the Respondent ever moved to execute the consent judgment on the Kshs 9.5 Million, while the Applicant remained in possession of the land since 1996/97 having paid a substantial part of the price.

p. 6
03

Who should bear costs

Holding

Costs follow the event; the Applicant is condemned to pay costs because his own non-compliance necessitated the application

Reasoning

Had the Applicant complied with the Court of Appeal orders there would have been no need for the application. Although the application was allowed, the court exercised discretion against him on costs.

p. 6

Legal principles established

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  • A consent judgment has contractual effect and binds the parties, and can only be set aside on grounds which would justify setting aside a contract
  • Acquiescence applies where a person with knowledge of an infringement of his right stands by so as to induce the actor to believe he assents, and cannot afterwards complain

Court orders

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  1. 1.The application dated 28/12/24 is allowed
  2. 2.The Applicant shall bear the costs of the application
  3. 3.Paragraph 1(a) of the order corrected by the Court pursuant to Section 99 of the Civil Procedure Act (order of 2/5/2025)

Authorities

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Legislation

  • Civil Procedure ActSection 99

Cases cited (4)

  • Flora N Wasike Vs Destino Wamboko
    (1988) EKLR
  • N. Wasike v Destinno Wamboko
    {1988} eKLR
  • J. M. Mwakio v Kenya Commercial Bank Ltd
    CA No. 28 of 1982
  • Murigu v Horeria (Environment and Land Civil Miscellaneous Application E229 of 2022)
    [2023] KEELC 17792 (KLR) (25 May 2023)
Jurisdiction invoked
Inherent enforcement jurisdiction over consent judgment of the Court of Appeal; Section 99 of the Civil Procedure Act invoked for correction of the order

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, "Horeria v Murigi (Environment and Land Miscellaneous Application E001 of 2025) [2025] KEELC 3498 (KLR)", Case Analysis (2025). Environment and Land Civil Miscellaneous Application (Nairobi) in respect of the application dated 28/12/24. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3498/eng@2025-04-28

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