Nkugwe Investments Limited v Kihara & 3 others (Sued on their Own Behalf and on Behalf of the Estate of the Late Paul Samuel Kihara) (Environment and Land Case 512 of 2005) [2026] KEELC 3135 (KLR)
The bottom line
#A Kenyan High Court lifted a land restriction, gave a buyer more time to pay for property, but ordered interest for the long delay.
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 Court is functus officio
- 2.Whether the application to set aside the judgment is barred by the doctrine of res judicata
- 3.Whether the Defendants' application and replying affidavit dated 17th November 2025 are barred under Order 9 Rule 9 of the Civil Procedure Rules
- 4.Whether this Court should extend the time to consider the Plaintiff's compliance made on 1st October 2025 as having been within the Court's timelines
- 5.Whether the Defendants are entitled to the discharge of the interlocutory orders and restriction
Key legal issues
#Functus officio
The Court is not functus officio; both applications concern execution, discharge or satisfaction of the decree under Section 34(1) of the Civil Procedure Act, within its residual post-judgment jurisdiction.
The doctrine prevents reopening of a matter on which final decision has been rendered, but is not absolute. Section 34(1) of the Civil Procedure Act confers substantive jurisdiction on the court that passed the decree to answer questions arising on execution, discharge or satisfaction. Neither application seeks to relitigate the merits: the Defendants ask whether the conditional decree has lapsed, and the Plaintiff asks to regulate the timing of compliance. Both fall within the residual jurisdiction.
Res judicata
Res judicata does not bar the Defendants' application because the issues it raises (non-compliance with decree conditions and lapse of specific performance orders) were not directly or substantially in issue in the dismissed application of 19th October 2023.
Section 7 of the Civil Procedure Act bars re-litigation of matters directly and substantially in issue in a former suit between the same parties finally decided. The earlier application sought leave to come on record and setting aside of the ex parte judgment; the present application is grounded on the Plaintiff's alleged non-compliance with decree conditions. Since the issues differ, the plea of res judicata fails.
Order 9 Rule 9 compliance
The firm of Githumbi Gachaga & Achoki Advocates was not properly on record, but the defect is procedural; the pleadings are admitted under Article 159(2)(d) and the overriding objective.
Judicial notice was taken of the earlier ruling declining leave for the firm to come on record, so it cannot be deemed properly on record. However, Order 9 Rule 9 protects advocates and is not a jurisdictional bar. Following Tobias M. Wafubwa v Ben Butali, non-compliance that does not undermine jurisdiction, affect the core dispute or cause prejudice does not nullify proceedings. No prejudice to the Plaintiff was demonstrated.
Enlargement of time for payment
Time is enlarged and the Plaintiff's payment of Kshs. 1,721,565/= made on 1st October 2025 is deemed within time, but the Plaintiff is indolent and must pay 14% interest from 26th July 2024 to the date of the ruling.
Section 95 of the Civil Procedure Act and Order 50 Rule 6 permit enlargement even after expiry. Applying the Patrick Maina Mwangi factors, the delay was prolonged and inadequately explained since costs were assessed as early as 3rd August 2022. Nonetheless the decree remained valid and unappealed, and refusal would deny the Plaintiff an issued decree. Balancing the default against substantive rights, enlargement is granted with compensatory interest, and property appreciation is a relevant prejudice factor.
Discharge of interlocutory injunction and restriction
The interlocutory orders of 11th May 2006 are spent and the restriction registered against L.R No. 7959 pursuant to them must be lifted to enable execution of the decree.
Interlocutory injunctions are provisional preservation remedies that lapse on final judgment unless expressly preserved; the 2006 orders were not preserved in the 9th March 2022 judgment. Under Section 78 of the Land Registration Act the Court may remove a restriction whose underlying purpose is spent, especially where its persistence impedes enforcement of the decree and the transfer ordered in favour of the Plaintiff.
Legal principles established
#- The functus officio doctrine does not divest a court of residual statutory jurisdiction under Section 34(1) of the Civil Procedure Act to determine questions relating to the execution, discharge or satisfaction of its decree.
- A decree for specific performance subject to payment does not automatically lapse on non-compliance; the court retains supervisory jurisdiction to enlarge time even after expiry, upon terms.
- Non-compliance with Order 9 Rule 9 of the Civil Procedure Rules does not automatically render subsequent proceedings a nullity where it does not undermine jurisdiction or cause prejudice.
- Interlocutory injunctive orders lapse upon delivery of final judgment unless expressly preserved, and a restriction registered in reliance on such orders ceases to have legal justification once the orders lapse.
Court orders
#- 1.The restriction registered against L.R No. 7959 pursuant to the interlocutory orders is lifted forthwith, and the Land Registrar shall give effect to this order without delay
- 2.The interlocutory injunctive orders issued on 11th May 2006 are declared spent
- 3.Time for compliance with the payment obligations under the judgment of 9th March 2022 and the orders of 24th May 2022 is enlarged, and the sum of Kshs. 1,721,565/= paid on 1st October 2025 is deemed to have been paid within the prescribed timelines
- 4.The Plaintiff shall pay interest on the said sum at the rate of 14% from 26th July 2024 until the date of delivery of the ruling, such interest to be settled within thirty days
- 5.Each party to bear its own costs of the applications
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 34(1), 95 and 26 of the Civil Procedure Act (residual post-judgment jurisdiction over execution, discharge and satisfaction of the decree)
Relief refused
#Discharge of the order of specific performance issued on 9th March 2022 and abatement of the judgment for failure to deposit the purchase price (Defendants' Motion dated 15th July 2025)
The decree for specific performance does not automatically lapse upon non-compliance; the Court enlarged time and deemed the payment compliant, so the judgment remains valid and enforceable.
Striking out of the Defendants' application and replying affidavit for breach of Order 9 Rules 7, 9 and 10 of the Civil Procedure Rules
Non-compliance with Order 9 Rule 9 was a procedural, not fundamental, lapse causing no demonstrable prejudice to the Plaintiff.
Costs
Each party shall bear its own costs of the applications.
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 Defendants' Application dated 15th July 2025 is partially allowed, on the following terms: i. The restriction registered against L.R No. 7959 pursuant to the interlocutory orders issued in these proceedings is hereby lifted forthwith, and the Land Registrar shall give efiect to this order without delay.
The Plaintifi's Notice of Motion dated 8th October 2025 is allowed on the following terms: i. Time for compliance with the payment obligations under the judgment delivered on 9th March 2022 and the subsequent orders issued on 24th May 2022 is hereby enlarged, and the sum of Kshs. 1,721,565/= paid by the Plaintifi on 1st October 2025 is deemed to have been paid within the prescribed timelines.
The Plaintifi shall pay interest on the said sum at the rate of 14% from 26th July 2024 until the date of delivery of this ruling, and such interest shall be settled within thirty days of this ruling.
Each party shall bear its own costs of the applications.
Section 34(1) of the Civil Procedure Act expressly grants jurisdiction to the Court that passed the decree to determine all questions arising between the parties relating to the execution, discharge, or satisfaction of the decree.
Such a decree does not automatically lapse upon non-compliance but remains under the Court's supervisory jurisdiction to determine whether the condition has been satisfied or should be deemed so.
Upon delivery of final judgment, such orders are overtaken by events and cannot subsist independently unless expressly preserved.
Issues in the judgment
#The court and case number are not stated anywhere in the judgment text; the court is inferred from subject matter (land) and the mention of a Court of Appeal case. The caption heading is missing.
Date inconsistency in the Defendants' supporting affidavit description versus averments: the Notice of Motion is dated 15th July 2025 but paragraph 29 refers to 'the Defendants' application dated 14th July 2025'.
Date inconsistency regarding the review of judgment: the deponent at paragraph 8 refers to a review on '24th May 2022' while the grounds of the Defendants' application refer to review on '22nd May, 2022'.
Date inconsistency regarding the Defendants' replying affidavit: it is described as sworn on 17th December 2025 in one passage and referred to as 'dated 17th November 2025' elsewhere, including in the issues for determination.
Systematic OCR corruption of the word 'Plaintiff' rendered as 'Plaintifi' throughout, and 'effect' rendered as 'efiect' in quotations.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nkugwe Investments Limited v Kihara & 3 others (Sued on their Own Behalf and on Behalf of the Estate of the Late Paul Samuel Kihara) (Environment and Land Case 512 of 2005) [2026] KEELC 3135 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3135/eng@2026-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.