Ng'ang'a v Kirimi & another

3. The consent was conditional in nature. By its terms, the 1st respondent was, rst, to release the sum of Kshs. 462,500.00 then held in a joint savings account at Barclays Bank of Kenya Ltd together with interest accrued thereon to the School; secondly, to pay the outstanding land rent and rates for the years 2001, 2002 and 2003; and only upon compliance with those two conditions was the School to execute the transfer of the land to the 1st Respondent. The appeal at the High Court was consequently marked as withdrawn with costs to the School. 4. It is not disputed that the 1st respondent did not full these conditions. He neither released the funds held in the joint account nor paid the outstanding land rent and rates. The transfer was, therefore, never eected. The 1st respondent's inaction prompted the School, through the Oce of the Attorney General, to write to him on 16th January 2004 and subsequently on 12th August 2004, giving notice that if he did not nalize the transaction, the property would be sold to another party. Neither letter elicited a response from the 1st Respondent. 5. It is pertinent to note at this stage that on 2nd March 2012, the 1st respondent applied in the High Court for the 2nd respondent to be cited for contempt of the consent order. In a ruling delivered on 7th March 2013, the court found that the 1st respondent had failed to perform the acts ordered by the court as prerequisites to the transfer. The court observed that the 1st respondent had failed to execute a release form to enable the sum of Kshs. 462,500.00 to be availed to the School, and had further failed to pay and clear the land rents and rates for the years 2001, 2002, and 2003. The contempt application was accordingly dismissed. No appeal was preferred against that ruling. 6. Following the 1st respondent's continued inaction, the school entered into a sale agreement with the Appellant, Peter K. Ng'ang'a, on 5th November 2004. The appellant purchased the property, took possession, and has since developed it with residential apartments at a cost of over Kshs. 50,000,000.00. The 1st Respondent, upon discovering the development, led ELC Case No. 444 of 2005 seeking orders to evict the appellant and have the property transferred to himself. It is noteworthy that in that suit, the 1st respondent did not join the 2nd respondent as a defendant; the 2nd respondent was only joined as a third party in October 2018, about thirteen years after the suit was led. 7. The ELC court found in favour of the 1st respondent, holding that the 2003 consent order was valid and enforceable, and that the appellant was a trespasser. The learned trial judge ordered the appellant to vacate the suit property and demolish the developments thereon within 180 days. It is this nding that gave rise to this appeal. 8. At the hearing of this appeal, learned counsel Mr. Awuor held brief for Mr. Aseda for the Appellant, while learned counsel Mr. Muturi appeared for the 1st Respondent. The 2nd Respondent was served through its advocates on record, Rabala & Company, but did not participate in the appeal. 9. The appellant's case is premised on several grounds, which may be distilled into the following core submissions: rst, that the 2003 consent was conditional and that the 1st Respondent failed to full the conditions precedent to the transfer; secondly, that the consent order was a judgment in personam that could not bind the appellant, who was not a party to the proceedings in which it was made; thirdly, that the trial court erred by reviewing and varying the terms of the consent order, eectively granting the 1st Respondent title he had not paid for; fourthly, that the trial court fell into error by considering issues that were res judicata, having been determined in the contempt ruling of 7th March 2013; fthly, that the trial court was barred by the doctrine of departure from adjudicating on the dispute between the 1st and 2nd respondents, which was not properly before it; sixthly, that the consent order had become statute- barred under Section 4(4) of the Limitation of Actions Act by 19th February 2015; and lastly, that https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1783/eng@2026-09-25 2

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the doctrine of lis pendens did not apply because the appeal at the High Court had been withdrawn and the matter was no longer pending when the appellant purchased the property. 10. The 1st respondent opposed the appeal, arguing that the consent order created an equitable interest in his favour that bound the land, and that the doctrine of lis pendens barred the School from selling to the Appellant. The 1st respondent further contended that the trial judge was exercising her jurisdiction to arrive at substantive justice by perusing the court le in ELC Appeal No. 36 of 2017, where she found that there was a third party, who is the 2nd respondent herein, who was executing conditional consent orders of 2003. However, during the oral submissions and upon questioning by the Bench, the position of the 1st respondent shifted considerably. Counsel for the 1st respondent conceded, rst, that the consent order was conditional rather than nal; secondly, that the 1st Respondent had not fully fullled the conditions imposed on him by the consent, the outstanding item being the payment of rates and land rent for the years 2001 to 2003; thirdly, that the funds held in the joint account were only released in 2018, about fteen years after the consent order; and fourthly, that his reliance on the doctrine of adverse possession was misplaced. These concessions, made under judicial questioning, are signicant and inform our determination of this appeal. 11. We have carefully considered the record, the written and oral submissions of counsel, and the authorities cited. In our view, the following issues arise for determination: rst, whether the trial court had jurisdiction to enforce the consent order of 19th February 2003 and to declare the 1st respondent the owner of the suit property; secondly, whether the trial court erred in law by reviewing and varying the terms of the consent order of the High Court; and thirdly, whether, on the facts and in the circumstances of this case, the appeal ought to be allowed. 12. The consent order of 19th February 2003 is the core issue upon which this dispute turns. We must remind ourselves of its precise terms. It was not a nal judgment transferring the land; it was a consent recording a settlement that required the parties to perform specic acts in a dened sequence. Clauses 1 and 2 imposed obligations on the 1st respondent, being the release of the purchase price held in a joint account and the payment of outstanding land rent and rates. Clause 3 was expressly conditional upon the performance of Clauses 1 and 2. The transfer of the suit property to the 1st respondent was to follow only upon his full compliance with those conditions. 13. It is evident from the record, and indeed conceded by the 1st respondent during the oral hearing, that he did not full the conditions. During the hearing of this appeal, counsel for the 1st respondent candidly admitted that his client did not full the obligations under the consent. In particular, the 1st respondent failed to pay the outstanding land rent and rates for the stipulated years. The funds held in the joint account were not released until 2018, fteen years after the consent order. By his own inaction, the 1st respondent incapacitated the School from complying with its part of the bargain. 14. The law is well settled that equity acts in personam and that a party who seeks equitable relief must come to court with clean hands. A party cannot approach a court seeking equitable relief such as specic performance when he has not performed his own part of the contract. The 1st respondent's right to the land was expressly dependent upon his compliance with the consent order. By failing to do so, that right never crystallized. The title remained vested in the 2nd Respondent, the School, as the registered proprietor. 15. The trial court itself recognized this conditional nature of the consent order. At paragraph 21 of the judgment, the learned judge stated that it was not in dispute that the consent judgment was conditional upon payment by the 1st Respondent of the outstanding land rent and rates. At paragraph 28, she further observed that not all the conditions had been satised. Despite these correct ndings of fact, the trial court proceeded to declare the 1st respondent the lawful owner of the suit property and to order https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1783/eng@2026-09-25 3

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the eviction of the appellant. With respect, this was a contradiction in terms. One cannot be declared the owner of property under a conditional consent, the conditions of which one has failed to satisfy. 16. Furthermore, the question of the 1st respondent's non- compliance with the consent order had been specically determined in the contempt proceedings before the High Court. In the ruling delivered on 7th March 2013, the Court expressly found that the 1st Respondent himself had failed to do the acts ordered by the Court as prerequisites to the transfer. That nding was never appealed against. Section 7 of the Civil Procedure Act provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or parties under whom they claim. The trial court was, in our view, bound by that nding and ought not to have arrived at a conclusion inconsistent with it. 17. We also nd merit in the appellant's submission regarding limitation of time. Section 4(4) of the Limitation of Actions Act provides that no proceedings to enforce a judgment shall be brought after the expiry of twelve years from the date on which the judgment became enforceable. This Court, in M'ikiara M'rikanya & Another v. Gilbert Kabeere M'mbijiwe [2007] eKLR, interpreted that provision to mean that all post- judgment proceedings, including originating and interlocutory proceedings for execution of judgment, are statute-barred after twelve years. The consent order herein was recorded on 19th February 2003. The twelve-year limitation period therefore expired on 19th February 2015. The appeal before the High Court was determined on 15th June 2015. The ELC judgment was delivered on 23rd May 2019, sixteen years after the Consent Order. By that date, the Consent Order was no longer enforceable as a matter of law. 18. As regards the doctrine of lis pendens, which the trial court relied upon, we are satised that it has no application to the facts of this case. The doctrine operates to prevent parties to pending litigation from transferring the subject property in a manner that would prejudice the rights of other parties to the suit. However, the High Court appeal had been marked as withdrawn by consent on 19th February 2003. As this Court observed in PIL Kenya Limited v. Joseph Oppong [2009] eKLR, the eect of a notice of withdrawal is to terminate the suit. Similarly, in Mwamlole Tchapu Mbwana v. IEBC & 7 Others [2018] eKLR, this Court held that once a consent for withdrawal was led, the appeal stood withdrawn and ceased to exist. By the time the School entered into the sale agreement with the Appellant on 5th November 2004, there was no pending suit or proceeding in respect of which the doctrine of lis pendens could operate. The trial court's nding that the agreement between the Appellant and the School was entered into while there was a pending suit was therefore in error. 19. Furthermore, the trial court fell into error under the doctrine of departure. As this Court stated in IEBC v. Stephen Mutinda Mule & Others [2014] eKLR, parties are bound by their pleadings and a court is conned to adjudicating upon the specic matters in dispute which the parties have raised. In the suit before the ELC, the 1st respondent did not join the 2nd respondent as a defendant. The dispute between the 1st and 2nd respondents, including the question of whether the consent order was enforceable against the School, was not properly before the trial court. The court ought not to have descended into an inquiry into the rights and obligations of the 1st and 2nd respondents under the consent order, a matter that had been the subject of separate proceedings. 20. In any event, even if the question of enforceability of the consent order had been properly before the trial court, the consent order was a judgment in personam. It created obligations only as between the 1st and 2nd respondents, who were the parties to the proceedings in which it was recorded. It was not a judgment in rem. A judgment in rem determines the ownership of property not merely as between the parties but as against all persons. The consent order herein did no such thing; it merely set out a sequence of steps that, if completed, would lead to a transfer of the property. The appellant was not a https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1783/eng@2026-09-25 4

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party to those proceedings and could not be bound by them. The trial court's reasoning, which treated the consent order as though it conferred proprietary rights on the 1st respondent enforceable against the whole world, was fundamentally misconceived. 21. The second issue is whether the trial court erred in law by reviewing and varying the terms of the consent order. In our view, it did, and in a manner that raises serious jurisdictional concerns. 22. The learned trial judge, while purporting to enforce the Consent Order, made orders that were inconsistent with and indeed contradicted its terms. Clause 3 of the Consent Order provided that the School would execute the transfer of the suit property to the 1st respondent only upon the 1st respondent's compliance with Clauses 1 and 2. The trial judge correctly found that the 1st respondent had not complied with those conditions. Yet, despite that nding, she proceeded to declare the 1st respondent the lawful owner of the suit property and ordered the eviction of the appellant. The eect of those orders was to grant the 1st respondent the very relief the consent order had conditioned upon his performance. In doing so, the trial court eectively reviewed and varied the terms of the consent order of the High Court, a court of concurrent jurisdiction. The ELC court had no jurisdiction to do. 23. Further, a court cannot enforce a judgment in favour of a party who is in breach of the very terms that create the right. By declaring the 1st Respondent, the owner of the suit property without the payment of the purchase price and without the settlement of the outstanding land rent and rates, the trial court, with respect, acted in a manner inconsistent with Article 40(2) of the Constitution, which prohibits the arbitrary deprivation of property. No court has jurisdiction to gift land belonging to one party to another. 24. The third issue is whether, on the totality of the facts and circumstances of this case, the appeal ought to be allowed. Having found that the trial court lacked jurisdiction to enforce the consent order, that it erred in reviewing and varying the terms of a consent of a court of concurrent jurisdiction, and that the 1st respondent's right to the suit property never crystallized, the answer must be in the armative. 25. We turn briey to the appellant's status. The appellant purchased the suit property from the 2nd respondent, which was at all material times the registered proprietor. The trial court itself found that the appellant had no knowledge of any defect in the title and that no fraud was directly attributable to him. The trial court nevertheless denied the appellant the status of an innocent purchaser for value without notice based on his advocates' alleged failure to conduct due diligence. With respect, the Appellant's right to the property derives from his contract with the registered owner, not from his advocates' conduct. The registered proprietor was entitled to sell the property to the Appellant, the consent order having been rendered unenforceable by the 1st Respondent's own default. 26. Even if we were to assume, for the sake of argument, that the 1st Respondent retained some residual equitable interest in the suit property, the principle of qui prior est tempore potior est jure, meaning “he who is rst in time is stronger in law,” is not absolute where the rst in time comes to equity with unclean hands. The 1st Respondent sat on his rights for years, failed to pay the required rates, did not release the purchase price, and only stirred into action after the Appellant had developed the land at considerable expense. The 1st Respondent lodged a caveat against the title on 9th September 2004, founded on a Consent Order, the conditions of which he had not fullled and without disclosing his non-compliance to the Land Registrar. That caveat was, in the circumstances, had no factual or legal foundation. 27. The ELC court's order for the demolition of the Appellant's developments, comprising residential apartments valued at approximately Kshs. 85,000,000.00 and housing twenty-six families, was in our view disproportionate and against the principle of balance of convenience. It would visit severe https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1783/eng@2026-09-25 5

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hardship not only upon the Appellant but upon the innocent third parties and their families who occupy the property. Even if the 1st Respondent had a valid claim, which we have found he does not, it would have been more equitable to award compensation rather than to order the demolition of developed property. 28. As a result, we are satised that this appeal should succeed. The 1st respondent conceded that he did not full the conditions of the consent order, and it was open to the 2nd respondent, as the registered proprietor, to sell the land to the appellant. The trial court fell into serious error by treating a conditional consent as a nal transfer and by reviewing and varying the orders of the High Court. The 1st respondent's suit at the ELC was, in the circumstances, an abuse of court process aimed at rescuing a transaction he himself had frustrated by his prolonged inaction and non-compliance. 29. Accordingly, for the reasons set out above, this Court makes the following orders: a. The Appeal is hereby allowed. b. The Judgment and Decree of the Environment and Land Court dated 23rd May 2019 in ELC Case No. 444 of 2005 is hereby set aside in its entirety. c. The 1st Respondent's suit against the Appellant in ELC Case No. 444 of 2005 is hereby dismissed with costs. d. It is declared that the Appellant, Peter K. Ng'ang'a, is the lawful purchaser of Plot No. 209/12116/17 Plainsview, Mombasa Road, having purchased the same from the 2nd Respondent, which was the registered proprietor at the time of sale. e. An order is hereby issued directing the Land Registry to cancel the caveat lodged by the 1st Respondent against the suit property. f. The 2nd Respondent is hereby directed to execute all necessary transfer documents in favour of the Appellant to nalize his title within forty-ve (45) days from the date of this judgment; in default, transfer documents to be executed by the Deputy Registrar. g. The Appellant shall have costs of the appeal and of the suit in the Environment and Land Court, which costs shall be borne by the 1st Respondent. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. P. O. KIAGE …………………………… JUDGE OF APPEAL R. NGETICH …………………………… JUDGE OF APPEAL RADIDO S. OKIYO …………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1783/eng@2026-09-25 6

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DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1783/eng@2026-09-25 7

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