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ELCOtherELC 289 OF 2017· [2026] KEELC 5034 (KLR)

Okullo v China Wu Yi (K) Company Ltd & 2 others (Environment and Land Case 289 of 2017) [2026] KEELC 5034 (KLR)

Environment and Land Court
20 July 2026
NYNYAGAKA
3,454 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that once parties sign a consent on taxed costs, a pending challenge to that taxation is dead unless the consent itself is set aside.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court determines a single question: whether the Plaintiff's Reference dated 8th August 2025, challenging the taxation of his Party and Party Bill of Costs, had been overtaken by events following a Consent dated 4th December 2025, adopted as an order of the Court of Appeal on 16th February 2026. The background was a judgment of the court of 4th December 2019 awarding the Plaintiff costs, a Bill taxed at Kshs. 533,639.00 on 30th July 2025, and the Plaintiff's Rule 11 Reference challenging some twenty items. Pending the Defendant's appeal in Kisumu Civil Appeal No. E170 of 2020, the parties recorded a Consent compromising three stay-of-execution applications, with Clause E obliging the Appellant to pay the assessed costs of Kshs. 533,639.00 within seven days and Clause I providing reimbursement if the appeal succeeded. The Plaintiff argued the Consent did not compromise the Reference, invoking contractual construction principles and the expressio unius maxim. The Defendant contended the unqualified costs clause, incorporated into a binding court order, extinguished the Reference and that the Plaintiff was approbating and reprobating. The court held that the Consent expressly mentioned only the three applications and 'party and party costs assessed', without reserving the Reference or making payment without prejudice; applying expressio unius est exclusio alterius, the parties compromised the taxation issue. No vitiating factor was demonstrated, and a consent order binds until set aside on contractual grounds. The Reference was declared spent, overtaken by events and settled, with each party bearing its own costs.

Key legal issues

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01

Effect of the Consent on the pending Reference

Holding

The Consent, properly construed, compromised the issue of the taxed costs; the Reference is spent and overtaken by events

Reasoning

The Consent expressly mentions only three stay applications and obliges payment of 'party and party costs assessed at Kshs. 533,639.00' within seven days, without reserving the Reference or making payment without prejudice. Applying expressio unius est exclusio alterius, the express mention of the three applications and of party and party costs excludes continuation of the Reference. No fraud, mistake or other vitiating factor was shown. Until the consent is set aside on recognised grounds, it remains valid and enforceable, leaving no live controversy.

p. 16
02

Binding nature of consent orders

Holding

Consent orders are contractual and binding until impeached on recognised legal grounds

Reasoning

Following Brooke Bond Liebig (T) Ltd v Mallya and Flora N. Wasike v Wamboko, a consent judgment may only be interfered with on grounds that would justify setting aside a contract. A party who considers a consent ought not to bind them must first move the appropriate court to set it aside on recognised grounds; a court cannot rewrite the parties' agreement.

p. 17

Legal principles established

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  • A consent order has contractual effect and is binding unless set aside on grounds that would justify setting aside a contract, such as fraud, mistake, misrepresentation or collusion
  • Under the expressio unius principle, express mention of the three stay applications and of 'party and party costs' excludes treatment of the sum as security and excludes continuation of the Reference

Court orders

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  1. 1.The Reference dated 8th August 2025 is declared spent, having been overtaken by events and settled by the Consent adopted by the Court of Appeal
  2. 2.Each party to bear the costs
Jurisdiction invoked
Rule 11(1) and (2) of the Advocates (Remuneration) Order and Sections 1A and 3A of the Civil Procedure Act

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, "Okullo v China Wu Yi (K) Company Ltd & 2 others (Environment and Land Case 289 of 2017) [2026] KEELC 5034 (KLR)", Case Analysis (2026). ELC 289 OF 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5034/eng@2026-07-20

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