Magaiwa v Magige & another (Environment and Land Miscellaneous Application 7 of 2020) [2026] KEELC 5368 (KLR)

applicant knows of any other provision he ought to have brought the application under or by he would have done well to do so and explain how it supports the instant application rather than to keep the Court guessing or researching for him. 3. That said, to place the Application in its proper setting, a brief history of this matter, as gleaned from the pleadings, is necessary. The proceedings originate from a Notice of Motion dated 19th March 2020 (elsewhere on the record it is described as being dated 10th March 2020 as amended on 27th July 2020). It touched on land parcel LR. No. BUKIRA/BWISABOKA/155. The Motion was never determined on its merits. It was instead compromised by a consent recorded in open court before Hon. Ong'ondo, J. on 28th June 2021. Following the adoption of the consent an order was issued on 4th July 2021 (annexed to the Supporting Affidavit as MRM-1). 4. The terms of the consent order of 28 th June 2021 were, in summary, as follows: i. That LR. No. BUKIRA/BWISABOKA/155 has three (3) shareholders, namely Rioba Burume (1/10), Daniel Mwita Magaigwa (9/20) and Maroa Rioba Magige (9/20); ii. that the said land be proportionally partitioned to reflect the individual shareholding per the certified copy of the register on record; RULING ELC MISC NO. 7 OF 2020 2

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iii. that the Surveyor and the Land Registrar, Kuria East and West Sub-Counties, do visit the said land with a view to partitioning the same in accordance with the sections occupied by the respective shareholders currently; iv. that parties who had purchased portions of the land from any of the beneficiaries were to benefit from their respective sellers out of their shareholding; v. that the parties share equally the Registrar's and Surveyor's costs; vi. that the Land Registrar and the Surveyor file report(s) and a sketch map within 60 days; vii. that the O.C.S. Kehancha Police Station provide security during the exercise; and viii. that the matter be mentioned to confirm compliance on 27th September 2021. 5. Compliance with the consent was evidently not forthcoming. Thus, on 26th October 2023, Hon. Kullow, J. issued an order (annexed to the Affidavit herein as MRM2), confirming that the Notice of Motion dated 19 th March 2020 had been compromised by consent, and that “all parties were bound by the consent order dated 28 th June 2021”. The learned Judge ordered further that the suit land be sub-divided in terms of that consent order. RULING ELC MISC NO. 7 OF 2020 3

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6. The record further discloses that the Respondent moved this court by an Application dated 6 th March 2025. In it he sought to have the Applicant (now) punished for contempt of Court. By a ruling and consequent order of this Court, dated 17th November 2025 (annexed to the Replying Affidavit as DMM-1), the Respondent therein being the 1 st Defendant was found guilty of contempt of the orders issued on 28th June 2021. He was convicted accordingly. He was sentenced for payment of a fine in default of which he would be imprisoned for a term. He was also directed to, within six (6) days of payment of the fine or end of the prison term, purge the contempt by (a) refunding to the Respondent Kshs. 56,500/= being half of the sum of Kshs. 113,560/=. Further, he was directed to execute his part on the mutation forms in issue for further processing and vacate forthwith the part of the Respondent's suit land which the survey had found him to have encroached upon. 7. In default of the execution of the Mutation Forms, the Deputy Registrar of the court was to execute the forms and any other necessary documents for the sub-division of LR. No. BUKIRA/BWISABOKA/155. The court awarded the costs of that Application to the Respondent. 8. Aggrieved, the Applicant moved the Court of Appeal at Kisumu by Civil Appeal (Application) No. E112 of 2025, arising from the orders of this court, dated 16 th February 2026. By an order made on 5th May 2026 (annexed as DMM-2), a bench of Asike-Makhandia, Mwita and Ongaya, RULING ELC MISC NO. 7 OF 2020 4

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JJ.A. acting pursuant to Rule 58(1) of the Court of Appeal Rules dismissed that application with costs. 9. Nine (9) days later, on 14th May 2026, the present Motion was drawn and filed under Certificate of Urgency. By Directions issued and served on the parties in June 2026, the court declined to certify the application urgent. It directed physical service upon the Respondents by 8 th June 2026 and the filing of an Affidavit of Service thereof. The Respondents were given ten (10) days from service within which to respond and provided for the filing of written submissions. 10. It is worth noting that the parties herein are related by familial ties. 11. The Motion sought the following orders: 1. …Spent. 2. …Spent; 3. THAT the firm of M/s Apondi & Company Advocates be granted leave to come on record in place of the firm of M/s Mwita Kerario & Company Advocates for the Applicant; 4. THAT the court issue an order directing the Land Registrar Kehancha and the Land Surveyor to visit LR. BUKIRA/BWISABOKA/155 and conduct a resurvey and establish the boundaries in accordance with the consent dated 28/07/2021; RULING ELC MISC NO. 7 OF 2020 5

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5. THAT the court issue an order directing the Land Registrar Kehancha and the Land Surveyor, subsequent to the resurvey, to prepare the necessary documents aligning with the resurvey for signing by the parties; and 6. THAT the costs of the application be provided for. The Applicant's Case 12. The Motion was Supported by the Affidavit of MAROA RIOBA MAGIGE sworn on 14th May 2026. The gravamen of the Applicant's case was that he took no issue whatsoever with the consent order itself. But his problem was only with the manner of its execution. He deponed that the parties entered into a consent agreement dated 28 th June 2021. He annexed and marked as "MRM-1" the consent order in respect . He deponed that pursuant to that consent the Land Registrar and the Surveyor were to visit LR. BUKIRA/BWISABOKA/155 and sub-divide it in accordance with the shares indicated in the consent. Further, that it was also part of the consent that the partitioning be done in accordance with the sections/ portions occupied by the respective beneficiaries. From this he reasoned that the boundaries ought to have been established without evicting any party thereof. 13. He deponed further that sometime on 26th October 2023 the court, further, issued an order directing the Land Registrar to implement the consent order in accordance RULING ELC MISC NO. 7 OF 2020 6

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with the terms of that consent. He annexed and marked the order as "MRM-2". 14. The Applicant deponed further that the Land Registrar and the Surveyor thereafter conducted the exercise while he and the other beneficiaries were absent. That contrary to the consent, and as a result of that absence, boundaries were established in such a manner that his farmland bearing avocado, mango and banana plantations and trees planted by him were taken to the side of the Respondent, thereby effectively evicting him from the land. In support of this he annexed photographs marked "MRM-3", which he asserted depict the affected homestead, plantations and crops and by reference to which he deponed that the demarcations were done using sisal plants that sub-divided his home and his farm. He added that the portion of land on which he lived was allocated to the Respondent by the Land Registrar. 15. He deponed further that this state of affairs had given rise to the question whether he could comfortably sign the mutation forms. That a consent, being a court order, must be implemented as directed without twisting any of its provisions and cannot be implemented partially, as that would amount to contempt of court. He further deponed that he undertakes to sign the mutation forms and any documents (instruments) thereof if the survey is conducted in accordance with the terms of the consent. He stated that the matter having been concluded, he could not change his RULING ELC MISC NO. 7 OF 2020 7

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advocate without filing this application. Further, that the application had been made without unreasonable delay. Also, that the Respondent would suffer no prejudice. Lastly, that it was in the interest of justice that the orders sought be granted. The Respondent's Case 16. The Respondent opposed the Application through a Replying Affidavit sworn by DANIEL MWITA MAGAIGWA on 3rd June 2026. He deponed that the subject matter arose from the consent order of 28th June 2021. Further, that immediately upon its entry the Applicant began challenging it. He stated that the Applicant had filed a myriad of Applications challenging it, including those dated 4 th December 2023 and 24th November 2025, all of which failed. 17. He deponed that the Applicant was committed to civil jail for disobedience of a court order and was still serving that term. He annexed in that regard the ruling marked "DMM1" being the order of this court. It was dated 17 th November 2025 and by it the Applicant was convicted of contempt of the orders of 28 th June 2021. It also prescribed the terms upon which the Applicant was to purge that contempt and directions to the Deputy Registrar of the court to execute the mutation forms and any other necessary documents for the sub-division of the suit land. RULING ELC MISC NO. 7 OF 2020 8

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18. The Respondent deponed further that the Applicant appealed against the orders of this court on the stay vide Court of Appeal Application No. E112 of 2025. The appeal was dismissed with costs. He annexed the ruling thereon marked "DMM-2", being the order of the Court of Appeal at Kisumu, made on 5th May 2026. He added that the Applicant had to date not purged the contempt so as to enable him to be heard. 19. He deponed further that this Court had executed the consents required. That the Applicant wanted to use every excuse so that the execution of the consent would not continue. Further, that the Applicant had never wanted the partition to take place. Also, that he had sold most of his share of the suit land, and scattered purchasers all over so as to ensure that no sub-division took place. He deponed that constant threats and violent acts aimed at frustrating the sub-division had made it impossible for his family and his brothers to settle. He annexed in support, the police Occurrence Book extracts marked "DMM-3", being the entries from Kehancha Police Station, OB No. 39 of 24 th February 2026 and OB No. 33 of 21 st May 2026, each reporting malicious damage. He deponed that he was truly worn out by the multiplicity of applications being made by the Applicant, that litigation should come to an end, and that the Application is totally unmerited. 20. It should be noted that by the time the instant application was urged orally, RULING ELC MISC NO. 7 OF 2020 the applicant had served the 9

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imprisonment term fully and been released. Also, the Deputy Registrar had executed the mutation forms and other instruments of transfer. He also paid the requisite share of the survey fees as ordered, by the morning of the hearing of the instant application: perhaps being aware that he would have no audience if he did not purge the contempt of court. The application was disposed of by way of written submissions. Applicant's Submissions 21. The Applicant's filed their written submissions dated 3 rd July 2026. On the merits, learned counsel reproduced Sections 1A, 1B and 3A of the Civil Procedure Act. She submitted that the overriding objective; the just, expeditious, proportionate and affordable resolution of civil disputes together with the court's inherent power to make such orders as were necessary for the ends of justice, supported the grant of the orders sought. They submitted that the Applicant had no issue with the consent. That his complaint went only to the execution of the consent, which was not carried out in accordance with the agreement of the parties. That some parties had been displaced, the Applicant among them. 22. Counsel submitted that the Respondent did not dispute that the Applicant had been displaced during the exercise, nor that the execution of the consent order was improperly done. That granting the orders sought would occasion no prejudice to the Respondent and would bring the dispute to RULING ELC MISC NO. 7 OF 2020 10

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an end. That the respondents had not in any way opposed the Application of the Applicant. 23. On the change of advocates, counsel relied on Order 9 Rule 9 of the Civil Procedure Rules, 2010. She submitted that, judgment having been passed, a change of representation could only be effected by order of the court upon an Application on notice to all parties, hence the filing of this Application. 24. On the issue of the several Applications being filed and the purging of contempt, counsel submitted that those were matters the court had previously handled and concluded. Thus, they did not in any way affect the present Application. On costs, counsel cited Section 27 of the Civil Procedure Act and Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd, Nyeri High Court Judicial Review Application No. 6 of 2014 (Mativo, J.), for the proposition that costs follow the event and are compensatory rather than punitive and urged that the Applicant be awarded costs. Respondent's Submissions 25. The Respondents filed their written submissions dated 10 th July 2026. Their learned counsel framed three issues being whether the Applicant was entitled to orders staying implementation of the mutation forms and any other document relating RULING ELC MISC NO. 7 OF 2020 to the sub-division of LR. No. 11

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BUKIRA/BWISABOKA/155; whether the court should issue fresh survey and boundary determination; and whether the Application amounted to an abuse of the court process. 26. On the first issue, counsel submitted that the orders sought were intended to halt the implementation of lawful court orders that remained in force. That the mutation forms were prepared pursuant to the court's judgment and the consent of the parties, and their implementation was merely the execution of existing court orders and not the creation of new rights. They further submitted that the Applicant could not obstruct execution by refusing to comply with lawful orders. Further, he was guilty of contempt of court, having been directed to pay the requisite survey fees and having deliberately failed to comply. They argued further that it was trite that a litigant who deliberately disobeyed court orders should not be heard while in continuing contempt unless he first purged it. Counsel submitted that instead of complying, the Applicant had filed repeated Applications whose sole purpose was to delay implementation of the decree. Further, that the court should not aid a party whose conduct demonstrated deliberate disobedience. 27. On the second issue, counsel submitted that the prayer for a fresh survey and boundary determination was without legal basis, those issues having already been determined. That the suit land was owned in shares, and the implementation process RULING ELC MISC NO. 7 OF 2020 had already resulted in the 12

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preparation of mutation forms pursuant to the order of this court. They argued further that the court could not reopen concluded issues merely because one party had become dissatisfied with the outcome. Counsel added that the Land Registration Act contemplated the ascertainment and fixing of boundaries through the Land Registrar in accordance with statutory procedure. Further, that once undertaken pursuant to court orders, implementation should proceed unless the Applicant demonstrated illegality or procedural impropriety, which had not been shown. 28. On the third issue, counsel submitted that the Application had been overtaken by events. It was an abuse of the court process. The Applicant sought to set aside a valid consent order "through the back door" having failed before this court and before the Court of Appeal. Reliance was placed on Wasike v Wamboko (Civil Appeal 81 of 1984) [1985] KECA 149 (KLR) for the proposition that a consent judgment had contractual effect and could only be interfered with on grounds that would justify setting aside a contract. Counsel submitted further that the Applicant had neither pleaded nor proved fraud, mistake, collusion, illegality or misrepresentation. Also, that the consent was entered voluntarily by parties represented by counsel and remained binding. That the doctrine of finality of litigation barred endless re-litigation of issues already determined. 29. Counsel concluded that the Application was devoid of merit, constituted an abuse of the court process and was RULING ELC MISC NO. 7 OF 2020 13

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intended only to frustrate the execution of lawful court orders. They prayed that it be dismissed with costs. That concluded the submissions. 30. In addition to the written material, certain matters bearing directly on this application appeared on the court record. They were canvassed by counsel when the Application came up before me on 28th July 2026. I set them out because they materially affect the analysis that follows. 31. First, it was confirmed on the record that, pursuant to the order of this court dated 17 th November 2025, the Applicant has paid the sum of Kshs. 56,000/= towards purging the contempt. Counsel for the Respondent expressly confirmed receipt of that sum in court on 28 th July 2026. It should be noted that this payment was made, and the confirmation given, after the Respondent's Replying Affidavit had been sworn on 3rd June 2026 and after both sets of written submissions had been filed. 32. Secondly, counsel for the Respondent submitted that, having made that payment, the Applicant was thereafter obliged to execute the mutation forms and to vacate the portion found to have been encroached upon, but that he had done neither. The Deputy Registrar signed the mutation form instead of the Applicant. That on the contrary the Applicant continued to encroach upon the suit land and that there were hostility on the ground between the parties. RULING ELC MISC NO. 7 OF 2020 14

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33. Thirdly, counsel for the Respondent submitted that the survey conducted pursuant to the consent revealed that there was encroachment, and the surveyor, upon visiting the land to implement the order, had complied with the directions of the court. 34. Fourthly, counsel for the Applicant opposed the allegation of encroachment and denied that his client was encroaching upon the suit land. Issues for Determination 35. I have carefully considered the Notice of Motion dated 14 th May 2026, the Supporting Affidavit and its annextures, the Replying Affidavit and its annextures, the law, the rival written submissions, the authorities cited and the entire record. 36. In my view, therefore, only two issues arise for determination: i. whether the Application has been overtaken by events; and ii. who should bear the costs. Analysis and Determination i. Whether the Application has been overtaken by events 37. Learned Counsel for the Respondent submitted that the Application had been overtaken by events. The submission, RULING ELC MISC NO. 7 OF 2020 15

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in my view, goes to the root of the Motion, and I propose to take it first. If it is well founded, the no occasion should arise for this Court to enter upon the substantive merits of the prayers, for a court does not embark upon the determination of questions which can no longer yield any practical result. 38. An Application is overtaken by events when the state of affairs which it was framed to address has, by the time of determination, ceased to exist or it has diametrically changed as to render the application otiose, and thus with the result that the orders sought would either operate upon nothing or would require the Court to undo that which has already lawfully been done. In such a case the controversy between the parties is no longer alive, and any order made would be incapable of serving a practical purpose. 39. This Court like any other does not act in vain, is well settled. In Abdullahi Mohamed Abdi Mohamad Mahamud & 3 v Ahmed others [2018] KECA 677 (KLR), the Court affirmed that courts will not act in vain and will not thus issue orders where the subject matter has been overtaken by events. Also, the Court of Appeal put the same principle in similar terms in ERIC V. J. MAKOKHA & 4 others v Lawrence Sagini & 2 others [1994] KECA 60 (KLR). It observed that “equity, like nature, does nothing in vain, and an equitable remedy will not be granted where the order would be futile”. Of similar effect is the decision in Republic v Director RULING ELC MISC NO. 7 OF 2020 16

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General of East African Railways Corporation ExParte George Nume Kaggwa [1977] KEHC 8 (KLR), in which it was held that a court should grant only such orders as are capable of implementation. Put simply, where a matter has been overtaken by events, success in it would be an exercise in futility. 40. The above principles apply with particular force to where what is sought to be disturbed is a consent order which is not challenged. In Hirani v Kassam (1952) 19 EACA 131, the Court of Appeal for Eastern Africa approved the passage from the book, Seton on Judgments and Orders to the effect that a consent judgment or order has contractual effect and may be set aside only on grounds which would justify setting aside a contract, or where certain conditions remain to be fulfilled and are not carried out. That formulation was followed in Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266, where Law, Ag. P. Held; “A court cannot interfere with a consent judgment save in circumstances which would afford good ground for varying or rescinding a contract”. 41. Further, in Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR 485, Harris J. held that a consent order entered into by counsel binds all parties and cannot be set aside or varied save on proof of fraud, collusion, an agreement contrary to the policy of the court, or consent given without sufficient material facts or in misapprehension or ignorance of them. In Purcell v F. C. RULING ELC MISC NO. 7 OF 2020 17

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Trigell Ltd [1970] 2 All ER 671, Winn L.J. observed that a consent order may be set aside only on grounds which would justify setting aside a contract entered into by legally competent persons with knowledge of the material matters. 42. Our own Court of Appeal restated the principle in Wasike v Wamboko (Civil Appeal 81 of 1984) [1985] KECA 149 (KLR). In it the Court held that, “It seems to me that, if a consent order is to be set aside, it can really only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons, and I see no suggestion here that any matter that occurred would justify the setting aside or rectification of this order looked at as a contract.” 43. The formulation of the second limb of the Hirani case (supra) is decisive in this matter. It cuts against the Applicant rather than in his favour. A consent order may be interfered with where conditions remain to be fulfilled which have not been carried out. Herein, the conditions of the consent of 28th June 2021 have been carried out. The applicant does not challenge it. And in implementing it, the Land Registrar and the Surveyor attended (visited) the suit land. The partition was undertaken. The boundaries were established on the ground. The mutation forms were prepared. When the Applicant declined to execute his part, this Court, by its order of 17th November 2025, directed the Deputy Registrar to do so. There is accordingly no RULING ELC MISC NO. 7 OF 2020 18

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unfulfilled condition upon which the Applicant can fasten. Furthermore, he pleads no ground upon which an executed consent could be set aside. Indeed, he expressly disavows any challenge to the consent itself. 44. It follows, the effect of a consent order being contractual, that this consent could as well be said to have been discharged by performance. A contract which has been performed cannot be renegotiated by a party who is dissatisfied with the result of its performance, and a consent order which has been implemented cannot be reopened by a party who is dissatisfied with the manner in which the implementation turned out. Once performance is complete, the function of the Court is to give effect to what has been done under the consent and not to reconstitute the bargain which the parties themselves struck. 45. The position is illustrated by Nyanaro v Kanyankabaria [2024] KEHC 2960 (KLR) where a consent had been recorded between the parties but the subject matter of that consent thereafter ceased to exist, and the Court held that the questions sought to be revived were moot, no longer active, and their resolution incapable of altering the status of the case. It is illustrated also by Kibundu v M’mukira [2023] KEELC 17078 (KLR), where execution of the decree had been effected and vacant possession taken, and the application to restrain execution was accordingly found to have been overtaken by events. The lesson of both is that the Court looks to the state of affairs as it RULING ELC MISC NO. 7 OF 2020 19

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stands at the date of determination, and not as it stood when the pleading was drawn. 46. Given the fact that the mutation forms and other instruments of transfer have been executed by the Deputy Registrar of this Court, then in my humble view, prayers 4 and 5 are overtaken in a more far-reaching sense. They invited the Court to direct the Land Registrar Kehancha and the Land Surveyor to visit the suit land, to conduct a resurvey, to establish the boundaries afresh, and thereafter to prepare the necessary documents for signature by the parties. Each of those steps is framed as though the exercise still lay in the future. It does not. The implementation of the consent order of the Court occurred when the survey was conducted. The boundaries have been established. The mutation forms have been prepared. The survey confirmed by its report returned to court, and counsel for the Respondent informed the Court, that the Applicant had encroached the Respondent’s land. In my view, the surveyor complied with the directions of the Court. 47. For the applicant to ask the surveyor to visit the suit land once more and carry out the survey, without any proper reason, in my humble view, is to reopen the case and relitigate over it once more. The consent of the parties was clear that the surveyor and the land registrar were to visit the land and establish boundaries between the parties in keeping with the agreed shares. He agreed were identified RULING ELC MISC NO. 7 OF 2020 20

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in the consent. The Applicant’s argument that the Surveyor and the Land Registrar, Kuria East and West Sub-Counties, were to visit the suit land with a view to partitioning the suit land in accordance with the sections occupied by the respective shareholders currently, and fix the boundaries as they were then is a gross misunderstanding of the consent. The million-dollar question is, what would be the purpose of agreeing that the parties were entitled to respective shares as agreed upon and recorded in the consent if the surveyor and the land registrar were to just visit the land and draw boundaries as per the settlements which were on the land at the time of the consent and not in accordance with the shares of the respective parties? In my humble view in answering the question, and rightly so, the limb of the consent mentioning “current” settlements then on the land could not and cannot be read in isolation of the confirmations of the partitions of the respective parties. There were identified in Clause 1 of the Consent that LR. No. BUKIRA/BWISABOKA/155 has three (3) shareholders, namely, Rioba Burume (1/10), Daniel Mwita Magaigwa (9/20) and Maroa Rioba Magige (9/20), and Clause 2 stated that the said land be proportionally partitioned to reflect the individual shareholding per the certified copy of the register on record. It follows that prayers 4 and 5 do not seek the implementation of the consent at all. Instated, they seek its reversal. To grant them, the Court would have to undo a completed exercise, treat the implementation of the consent as being of no RULING ELC MISC NO. 7 OF 2020 21

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effect and even the instruments prepared under it and the court’s own authority, thereby returning the parties to the position they were in the year 2021. That is a relief of a wholly different character from that which is pleaded. It one of the setting aside or to review the orders of 26 th October 2023 or of 17th November 2025. The orders stand. In that respect then, this Court is functus officio. In Murgani v Kenya Revenue Authority [2014] KECA 718 (KLR), the Court of Appeal affirmed that a court which had passed judgment cannot revisit it on the merits or exercise judicial power over the same matter afresh, save as provided by law. 48. Moreover, the Applicant's own conduct and affirmation at the hearing confirm that the process has moved beyond the point at which this Motion was framed and filed. The Motion was drawn on 14 th May 2026. On 28th July 2026 it was confirmed on the record that he had paid Kshs. 56,000/= under the very order of 17th November 2025 whose factual foundation he now invites the Court to reopen. A party who complies, however partially, with an order cannot at the same time ask the Court to treat the process from which that order sprang as still open for reconsideration. 49. I am not persuaded that a fresh survey would bring the dispute between the parties to an end, as the Applicant contends. The consent has been implemented, save for the completion of the registration process and compliance with RULING ELC MISC NO. 7 OF 2020 22

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the direction to vacate the portion found upon survey to have been encroached upon. 50. Prayer 3, which sought leave for M/s Apondi & Company Advocates to come on record in place of M/s Mwita Kerario & Company Advocates, does not depend upon the state of implementation of the consent and is not, strictly speaking, overtaken by events. It is, however, a prayer within a Motion which for the reasons given cannot stand. It cannot survive the dismissal of the Motion of which it forms part. Nothing in this ruling prevents the Applicant from regularizing his representation by a fresh and properly constituted application under Order 9 Rule 9 of the Civil Procedure Rules, 2010, or by a consent filed between the outgoing and the incoming advocates. 51. I should add that this is not a case in which any wider consideration requires the Court nonetheless to pronounce upon questions which have become academic or moot. It is worth noting that it is wholly unprocedural and makes any application or prayers incompetent for a party whose counsel has not come on record to seek substantive orders or prayers. That is akin to a strange weaver bird interfering with other birds’ nests to lay its eggs in. the eggs must be thrown off the nest: in essence it is unacceptable. 52. For the foregoing reasons, I find and hold that the Notice of Motion dated 14th May 2026 has been overtaken by events. In any event it sought to undo the implementation of a consent, which the applicant himself has no issue with. The RULING ELC MISC NO. 7 OF 2020 23

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consent order of 28th June 2021 has been spent by its performance. It is not open to be reopened at the instance of a party who pleads no ground upon which a contract could be set aside. The orders sought are incapable of serving any practical purpose. 53. This finding disposes of the Application in its entirety. I say nothing upon the Respondent's objection founded on the Applicant's contempt, nor upon whether a sufficient evidential basis was laid for a fresh survey. As to whether the Motion amounts to an abuse of the process of this Court, I find so, as I dismiss the application. Who should bear the costs 54. Section 27(1) of the Civil Procedure Act vests the award of costs in the discretion of the Court, subject to its stipulation that while the costs of any action, cause or other matter or issue shall follow the event the Court or judge may for good reason to be recorded direct otherwise. 55. In the instant applicant, both parties addressed the Court on costs. Both relied upon Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd, Nyeri High Court Judicial Review Application No. 6 of 2014, in which Mativo, J. (as he then was) observed that costs are in the discretion of the Court, that the basic rule on their attribution is that costs follow the event, and that the principle is not applied to penalise the losing party but to RULING ELC MISC NO. 7 OF 2020 24

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compensate the successful party for the trouble taken in prosecuting or defending the case. I respectfully adopt that statement of the law, even as I have stated likewise in many decisions I need not reproduce herein. 56. The event herein is that the Motion has failed. The Applicant is not the successful party. There is no basis upon which he could be awarded the costs he seeks. The Respondent, for his part, was obliged to file a Replying Affidavit and written submissions, and to attend court, in answer to a Motion. I find no good reason to deny him of the costs by departing from the ordinary rule. 57. The upshot of the foregoing, and for the reasons set out above, is as follows: a) The Notice of Motion dated 14th May 2026 is hereby dismissed in its entirety. b) The Applicant shall bear the costs of the Application. 58. Orders accordingly. Ruling dated, signed and delivered virtually via the Teams Platform this 12th day of August 2026. HON. DR. IUR NYAGAKA JUDGE In the presence of: RULING ELC MISC NO. 7 OF 2020 25

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Ms. Apondi Advocate for the Applicant Owino Advocate for the Plaintiff/Respondent Court Assistant: Arthur RULING ELC MISC NO. 7 OF 2020 26

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