Brothers of St Gabriel Registered Trustrees v Moturi & another (Environment and Land Case E032 of 2023) [2026] KEELC 5028 (KLR) (30 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT KAJIADO** **ELCLC E032 OF 2023** BROTHERS OF ST.GABRIEL REGISTERED TRUSTREES……………………………….………….……………PLAINTIFF VERSUS SAMUEL MOTURI………………………………………………………...….1ST DEFENDANT AGNES MORAA NYAUNTU………………………………………………..2ND DEFENDANT **RULING** ***(In respect of the Plaintiff’s application dated 27th April 2026 brought under the provisions of sections 1A, 1B, 3A & 38 of the Civil Procedure Act & Order 51 rule 1 of the Civil Procedure Rules)*** **Background** 1. This suit was settled by way of a consent entered into by the parties and adopted as a judgement of the Court on 16th December 2025. The consent was detailed and elaborate comprising of 21 clauses. The Plaintiff/Applicant in the application under consideration prays for 3 main orders:- 2. **THAT** this Honorouble Court be pleased to authorize the Deputy Registrar of this Court to sign, execute and seal all necessary instruments for; 3. Withdrawal of caution; form LRA 69. 4. Application of Land Control Board consents. 5. Transfer of land forms; LRA 33, to give effect to the judgement/order of the Court dated 16th December 2025. 6. Certify the 2nd Defendants national identity card and KRA PIN that she supplied to her advocates. 7. **THAT** the signed documents be deemed to have been executed by the Defendants for all intended purposes. 8. **THAT** the Land Registrar Kajiado North (Ngong) Land Registry be directed to register the transfer of L.R No. Ngong/Ngong/13909 into the Applicant’s name upon presentation of the land transaction documents/instruments herein named and duly signed by the Deputy Registrar Kajiado High Court. 9. The application is premised on the grounds on the face of it and on the supporting affidavit of Brother Odric O. Kialo sworn on 27th April 2026. In a nutshell, the Plaintiff/Applicant asserts that the 2nd Defendant has declined and or refused to sign form LRA 69 to withdraw the caution and other restrictions registered against L.R No Ngong/Ngong/13909, the application forms for the Land Control Board and the land transfer forms to effect the transfer of the title to the Plaintiff as agreed, whereas the Plaintiff and the 1st Defendant have already performed and fully complied with their obligations. 10. The 2nd Defendant/Respondent in response to the application, vide her replying affidavit sworn on 18th May 2026, acknowledges the consent entered into in this case. She however asserts that she executed the consent in the belief that her claim to the parcel of land Ngong/Ngong/13909 would be extinguished once the 1st Defendant paid her the sum of Kshs. 12,000,000/=, being the agreed value of her share to the land. In essence, the 2nd Defendant states that she entered into the consent on the assumption that she would be fully compensated by the 1st Defendant before she could transfer the land Ngong/Ngong/13909 to the Plaintiff/Applicant. 11. The 2nd Defendant/Respondent therefore insists that she is not disobeying the orders of this Court but rather seeks to have the consent reviewed to expressly provide that she will only execute the transfer documents in favour of the Plaintiff and withdraw the cautions only upon receipt of the full amount of Kshs.12,000,000/= from the 1st Defendant. 12. In a further affidavit sworn on 24th June 2026, the deponent, Brother Odric O. Kialo asserts that the 2nd Defendant personally signed the consent and her advocate witnessed the same. On the date that the Court adopted the consent as a judgement of the Court, the advocate for the 2nd Defendant was present and confirmed agreement with the terms of the consent before it was adopted by the Court. 13. The Plaintiff/Applicant affirms that the consent judgement remains intact and has not been challenged nor varied. The actions of the 2nd Defendant are therefore in defiance of a valid Court order that she consented to and she cannot therefore be allowed to run away from it. **Directions by the Court.** 1. The directions by the Court were that the application be canvassed by way of written submissions; which submissions the Court has had occasion to consider in writing this ruling. **Issues for determination.** 1. Having considered the application and the response thereto as well as the submissions filed, the sole issue for determination is whether the orders sought by the Plaintiff/Applicant to facilitate execution of the decree of this Court should issue. **Analysis and determination.** 1. The matter before me is rather straight forward. I say so because, the 2nd Defendant/Respondent does not deny entering into the consent dated 17th November 2025 that was adopted as a judgement of this Court on 16th December 2025. 2. It is trite that a consent becomes a judgement or an order of the Court once adopted as such. The Court in the case of ***Edward Achola -versus- Sogea Satom Kenya Branch & 2 others (2014) eKLR***, affirmed the position, holding that; ***“Consent becomes a judgement or order of the Court once adopted as such. Once consent is adopted by the Court, it automatically changes character and becomes a consent judgement or order with contractual effect and can only be set aside on grounds which would justify setting aside or if certain conditions remain unfulfilled, which are not carried out.”*** 1. The terms of the consent from which a decree has since been issued, were clear and unambiguous. The obligations of the 2nd Defendant to withdraw and remove the caution on L.R No. Ngong/Ngong/13909, to execute all necessary transfer documents and obtain the requisite consents to transfer the property to the Plaintiff were not dependent on or conditional to the performance of the obligations by the 1st Defendant towards the 2nd Defendant. 2. The 2nd Defendant is well aware of her obligations as deposed in her replying affidavit. She has the advantage of legal representation by the same advocate who represented her even at the signing of the consent she cannot feign ignorance of the terms of the consent or the consequences of non-performance. 3. The consent having been adopted as a judgement of the Court is now binding on all the parties. It has not been set aside. 4. The parties to the consent went to the extent of making provision for default under clause 18 of the consent stating that; ***“That in the event of default by any party in complying with the terms of the consent, the Deputy Registrar of the High Court shall take such steps as may be necessary to give effect to and ensure full implementation of this consent order.”*** 1. It is not in doubt that the 2nd Defendant/Respondent has defaulted by failing to implement her obligations under clauses 14 and 15 of the consent. Consequently, the Plaintiff/Applicant is justified in invoking clause 18 of the consent. 2. This Court is persuaded that the Plaintiff/Applicant is entitled to the orders sought in the application dated 27th April 2026. In any event this Court is empowered under section 98 of the Civil Procedure Act to make such orders where any person neglects or refuses to comply with a decree or order directing him to execute any conveyance, contract or other document, or to endorse any negotiable instrument. The court may order that the conveyance, contract or other document shall be executed or that the negotiable instrument shall be endorsed by such person as the court may nominate for that purpose. In this case, the court nominates the Deputy Registrar to executed and seal the documents. 3. The application is therefore allowed with costs to the Plaintiff/Applicant against the 2nd Defendant/Respondent. 4. Consequently the Courts orders; 5. The Deputy Registrar of this Court to sign, execute and seal all necessary instruments for; 6. Withdrawal of caution; form LRA 69. 7. Application of Land Control Board consents. 8. Transfer of land forms; LRA 33, to give effect to the judgement/order of the Court dated 16th December 2025. 9. **THAT** the signed documents be deemed to have been executed by the 2nd Defendant for all intended purposes. 10. **THAT** the Land Registrar Kajiado North (Ngong) Land Registry be directed to register the transfer of L.R No. Ngong/Ngong/13909 into the Applicant’s name upon presentation of the land transaction documents/instruments herein named and duly signed by the Deputy Registrar, Kajiado Environment and Land Court. 11. There shall be no orders as to costs It is so ordered. **Dated, Signed and Delivered at Kajiado Virtually this 30th Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Mr. Mugwuku for the Plaintiff/Applicant Mr. Ndegwa for the 1st Defendant Ms. Kilonzo for the 2nd Defendant Court Assistant: Alex **M.D. MWANGI** **JUDGE**