Laboso & 3 others (Suing on Their Own Behalf and on the Behalf of Ndakisal Farmers Group Incorporating Salangena and Ndarawetta Farmers) v New Gatundu Mixed Farmers & another; Kangethe & another (Interested Parties) (Environment & Land Case 317 of 2015) [2025] KEELC 3652 (KLR)
The bottom line
#A Kenyan court refused to spare a chairman from arrest and jail over unpaid court costs because he had already agreed to a payment plan after being arrested.
What this practically means
#Executive summary
#Key legal issues
#Whether costs of the suit had been determined by the court
Yes - costs of the suit were determined on 28th September 2021 when the application dated 22nd October 2020 was allowed with costs, notwithstanding the consent which was silent on costs.
The consent of 13th December 2011 did not address costs. However, the Plaintiffs' application dated 22nd October 2020 sought costs of the suit and application, and the court's ruling of 28th September 2021 allowed that application with costs. The question of costs was therefore already judicially determined before execution proceedings were commenced.
Whether the orders of arrest and committal to civil jail against George Waithaka Kangethe should be set aside
No. The Applicant admitted service, was arrested, and entered a consent on 12th October 2023 to pay the taxed costs in instalments; he acquiesced to execution and the application was an afterthought.
Under Section 38 of the Civil Procedure Act and Order 22 Rule 31, execution by arrest requires due process including a notice to show cause. The Applicant was arrested, appeared before the Deputy Registrar, and consented to pay the costs with warrants to remain in force on default. Having filed the application seven months after the consent, he failed to challenge the mode of attainment of the orders, the only viable ground.
Whether ELC Case No. 317 of 2015 should be struck out against the 1st Defendant
No. The suit is one and the same as HCC No. 132 of 2007, was transferred not separately instituted, was compromised by consent, judgment was entered, and a concluded suit cannot be struck out.
A notice of 10th February 2016 shows HCC No. 132 of 2007 was transferred to the Environment and Land Court and renamed ELC No. 317 of 2015. The Applicant's premise of two separate suits was wrong. The consent compromised the suit; the matter is post-judgment, execution is in motion, and striking out a concluded suit is not available.
Whether the dismissal order of 23rd September 2011 should be vacated
No such order exists. The suit was dismissed on 23rd September 2014 under Order 17 Rule 2 and was reinstated on 5th October 2020.
The court record shows the suit came up on 16th February, 6th June, 25th July and 21st November 2011, and a consent was recorded on 21st November 2011, so no dismissal occurred on 23rd September 2011. The actual dismissal was on 23rd September 2014, and reinstatement was granted on 5th October 2020 on the Plaintiffs' application dated 9th July 2020, rendering vacation unnecessary.
Legal principles established
#- The only ground for setting aside an order of committal to civil jail is to challenge the mode or manner in which the orders were attained; a judgment-debtor who consents to a payment schedule and defaults cannot later resist execution.
- Where a suit is transferred from the High Court to the Environment and Land Court and assigned a new number, it remains one and the same suit.
- Costs follow the event under Section 27 of the Civil Procedure Act and a successful party should ordinarily be awarded costs.
Court orders
#- 1.The 1st Interested Party/Applicant's application dated 4th June, 2024 is dismissed with costs
- Jurisdiction invoked
- Sections 3 & 3A of the Civil Procedure Act and Order 9 Rules 9, 10 & 11, Order 10 Rule 11 and Order 22 Rules 6, 7, 17, 18, 19 & 22 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Laboso & 3 others (Suing on Their Own Behalf and on the Behalf of Ndakisal Farmers Group Incorporating Salangena and Ndarawetta Farmers) v New Gatundu Mixed Farmers & another; Kangethe & another (Interested Parties) (Environment & Land Case 317 of 2015) [2025] KEELC 3652 (KLR)", Case Analysis (2025). ELC Case No. 317 of 2015 (formerly HCC No. 132 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3652/eng@2025-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.