https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7300

Habuti, National Secretary, Central Organisation Hawkers of Association (COHA) Kenya v City Manager & 2 others (Civil Miscellaneous Application E030 of 2026) [2026] KEHC 7300 (KLR) (27 May 2026) (Ruling) Neutral citation: [2026] KEHC 7300 (KLR) Republic of Kenya In the High Court at Eldoret Civil Miscellaneous Application E030 of 2026 RN Nyakundi, J May 27, 2026 Between Gerald Mutakha Habuti, National Secretary, Central Organisation Hawkers Of Association (Coha) Kenya Petitioner and The City Manager 1st Respondent The Chief Trade Officer 2nd Respondent The County Secretary, Uasin Gishu County 3rd Respondent Ruling 1.Before. Before this Court is an Application under Certificate of Urgency dated 21st January 2026 brought under Section 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules 2010, Part VII of the Urban Areas and Cities Act No. 13 of 2011, Section 56 and all other enabling provisions of the law. The Applicant moved this Court seeking the following orders;a.Spent.b.The Honourable Court be pleased to Order for enforcement and implementation of the signed resolution between the Applicant and the defunct Eldoret Municipal Council.c.That the costs of this application be provided for. 2.The Application is made on the following grounds;a.That the Applicant/Petitioner is the National Secretary of duly registered Hawkers Association Kenya.b.That on the 20th February 2012, there was a reached out resolution between the defunct Eldoret Municipal Council and the Hawkers Association after the Association raised a complaint as to their non-proper performance in the Central Business Designated areas.c.That as the County Government came in position, the Association brought this issue to their attention so that the said resolution should be implemented for ease of proper alignment of hawkers within the City.d.That The Association has made several demands upon the relevant offices of the County Government of Uasin Gishu to no any success on the same.e.That It is only fair that this Honourable Court grants the relief sought being to grant the applicant orders for the implementation of the signed resolution in order to have proper alignment of the duly registered hawkers in their register.f.That Given that the year has stated without communication from the county, the Applicant/ Petitioner stands to suffer irreparably unless the reliefs sought herein are granted as a matter of utmost urgency 3.In support of the application is the annexed affidavit sworn by Gerald Mutakha Habuti who deponed as follows:a.Our society is the duly registered entity to represent Hawkersb.That We signed a resolution on the best way of hawking within Central Business District (CBD) within the defunct Eldoret Municipal Council. Which ought to have been implemented and enforced by the County Government of Uasin Gishu as pertained under Urban Areas and Cities Act No.13 of 2011 Part VIII section 56c.That: We did draw a petition for removal of unscrupulous traders to enable duly registered (COHA) members in operation. Nothing took place at County Secretary offices.d.That: Office of the Ombudsman did show action taken by passing the same upon the relevant appropriate entity for the solution which to date has never taken off.e.That: There was a letter from the Commission on Administrative Justice (Office of the Ombudsman) we furnish with update from us.f.That: We did complaint through petition to the County Government of Uasin Gishu never bore any fruits at all.g.That: We make a request upon the County Secretary Uasin Gishu County to have an amicable undertaking on the implementation of the duly signed resolution.h.That: There was nothing that took place at the County Secretary Office of Uasin Gishu County as had directed the Chief Trade Officer (C.O) Trade to convene the meeting.i.That: We did a 2nd reminder upon the County Secretary Uasin Gishu County Government.j.That: We did make notice of intent to enforce implementation of signed resolution between us and the defunct Eldoret Municipal Council upon the offices of the City Manager and the Chief Trade Officer.k.That: The Central Organization of Hawker Association on their part did make steps for proper implementation on their part.l.That: It is only fair that this Honourable Court grants the relief sought being the implementation of the duly signed Resolution as upon Part VIII of the Urban Areas and Cities Act No. 13 of 2011 which was endorsed by then the ministry of Local Authorities on 2nd March 2012m.That: Unless the relief sought is granted we shall suffer irreparable loss on the genuine registered Hawkers. 4.The Respondent raised a notice of preliminary objection based on the following grounds:a.The Application offends the Limitations of Actions Act in respect to Contractual Claims and /or enforcement and implementation of a resolution.b.The Resolution was reached on 20th February, 2012 and the same was not reviewed, enforced and implemented by the County Government of Uasin Gishu.c.The Resolution is time barred, ten years has since lapsed from the date it was reached between the defunct Eldoret Municipal Council and the Hawkers Association.d.The Application also offends the provisions of Section 3(2) of the Public Authorities Limitations Act in respect to time under which proceedings founded on a contract and/or enforcement and implementation of a resolution, can be brought against the Government.e.The application is defective as the prayers sought are not based on legal provisions as no cause of action can be raised against the respondents.f.The application is bad in law and an abuse of the court process and the same should be struck out with costs to the respondents. 5.This is the subject matter which was placed before this court for consideration. Decision 6.When parties reach an out-of-court settlement but fail to have the agreement adopted as a Court judgment or order, the document remains private contract. Courts treat the settlement as an ordinary agreement by the law of contract. To enforce it, an aggrieved party must file a new suit for breach of contract rather than executing it as a Court decree. 7.If an agreement is not registered, recorded, or adopted by the Court, it lacks the status of a Court decree. What was expected of the Applicant if the Respondent failed to hold up their end of an un-adopted settlement, the primary remedy is to sue for breach of contract, rather than applying for execution proceedings as you would with a finalized Court order. 8.The persuasive authority in this matter by the Supreme court of Nigeria in the case of Star Paper Mill Ltd & Anor v Bashiru Adetunji & Ors (2009) 7 iLAW/SC 292/2002 in which the court rendered itself as follows:“it must be pointed out that it is one of the cardinal principles of our judicial systems to allow parties to amicably resolve the disputes between them. By doing so, the otherwise hostile relationship between the parties would be amicably resolved and cemented. It is this amicable resolution of disputes by the parties that is called settlement. When the terms of such settlements are reduced into writing, it is now called “terms of settlement” when the terms of settlement are filed they are called, and made the judgment of the court. It is then crystalized into ‘consent judgment’. When consent judgment is given, none of the parties has the right of appeal, except with the leave, of court. Hence, consent judgment, is a contract between the parties whereby rights are created between them in substitution for order of consideration of the abandonment of the claim or claims pending before the court. This is intended to put a stop to litigation between the parties just as such as a judgment which results from the decision of the court. 9.It emerges from this application that the parties agreed to resolve their differences amicably but that is as far as they went without agreeing without the exclusion and enforcement clauses. This agreement was neither filed before this Court nor any other Court in the Republic of Kenya. In essence, this very Court cannot be asked to enforce a consent which was never filed for adoption to give it validity as per the requirements of the law. It is not the business of the Court to rewrite contracts between parties including inserting the execution clause as the Applicants are now demanding of this Court to do by adopting it at this stage of the proceedings. 10.The best this Court can do is to dismiss the application for want of merit, with no orders to costs. DATED & DELIVERED AT ELDORET THIS 27TH DAY OF MAY 2026.………………………………..R. NYAKUNDIJUDGE