https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5111

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELC CASE NO. E30 OF 2020** **KENYA ELECTRICITY TRANSMISSION COMPANY LIMITED...................PLAINTIFF** **VERSUS** **MARYANN SHEIKH ABDIKADIR & 121 OTHERS......................................DEFENDANTS** **RULING** ***(In respect of the Notice of Motion application dated 23rd March 2026)*** **Introduction** 1. Before this Honourable Court for determination, is the Notice of Motion application dated 23rd March 2026. The application is brought by the 9th, 11th, 27th, and 28th Defendants (hereinafter referred to as the "Applicants"). 2. The Applicants seek the following orders: 3. THAT the Honourable Court be pleased to issue an order directing the Manager Equity Bank ( K) Limited, Parliament Road Branch to release the sums of money deposited in a joint interest earning account at Equity Bank (K) Limited, Parliament Road Branch Account Name Naikuni Ngaah & Miencha Co & Opiyo Advocates, Account No. 1770184673150 pursuant to the terms of the consent dated 13th September 2023 and filed in Court on 14th September 2023 to the 9th, 11th, 27th and 28th Defendants through their Advocates on record as follows:- 4. 9th Defendant, Silet Ngorngoi Nkurruna, Parcel No. Kajiado/Purko156 – Kshs. 3,976,926.00 and the interests earned thereof. 5. 11th Defendant, Kaitwa Ole Leshinga John, Parcel No Kajiado/Purko/120 – Kshs. 1,493,423.00 and the interests earned thereof. 6. 27th and 28th Defendant, Titus Tukero Ole Naikuni, Parcel No Kajiado/Purko/767 and 768 and – Kshs. 2,400,000.00 and the interests earned thereof. 7. THAT the costs of the application be provided for. 8. The application is premised on the grounds on the face of the motion and further supported by the affidavit of Dr. Titus Tukero Ole Naikuni, sworn on 23rd March 2026. The Applicants' core contention is that following a consent dated 13th September 2023, the Plaintiff deposited funds into a joint interest-earning account pending finalization of wayleave compensation. The Applicants aver that the Plaintiff subsequently withdrew the suit against them via a notice of withdrawal dated 2nd October 2025, thereby extinguishing any claim against these specific Defendants. Consequently, the Applicants argue that the Plaintiff’s refusal to execute a consent for the release of the jointly held funds is without lawful basis, unfair, and oppressive. 9. The application is opposed by the Plaintiff/Respondent through a Replying Affidavit sworn by its Advocate, Alfred Ochieng' Opiyo, on 26th May 2026. The Respondent contends that the application is misconceived and constitutes an abuse of the court process. Primarily, the Respondent raises an objection, arguing that Dr. Titus Tukero Ole Naikuni lacks the requisite written authority to swear the supporting affidavit on behalf of the 9th and 11th Defendants, which allegedly offends Order 9 Rules 1 and 2(a) of the Civil Procedure Act. 10. Substantively, the Respondent argues that there is no final judgment or executed letter of offer quantifying the compensation amounts, and that the deposited funds merely served as implied security to grant the Plaintiff access to commence construction of transmission lines. Furthermore, the Respondent asserts that mandatory preconditions stipulated in the consent remain unsatisfied. Specifically, the Respondent highlights that a boundary dispute regarding Parcel No. Purko 156 has not been resolved by the District Land Registrar in Kajiado, and that the Applicants failed to invoke Clause 7 of the consent to set the suit down for hearing to formally assess final compensation. 11. In a rejoinder to the Respondent's assertions, the Applicants filed a Supplementary Supporting Affidavit sworn by Dr. Titus Tukero Ole Naikuni on 5th June 2026. The Applicants urge the Court to strike out the Respondent's Replying Affidavit, arguing that it was filed outside the procedural timelines directed by the Court on 28th April 2026. 12. Addressing the Respondent's preliminary objection regarding his capacity to swear the initial affidavit, Dr. Naikuni contends that he already had authority on record to plead on behalf of several defendants, including the 9th and 11th Defendants. He notes that this authority was established in an earlier replying affidavit sworn on 13th July 2020, arguing that there is no legal requirement to file a fresh authority to plead for every application within the same suit. 13. Substantively, the Applicants dispute the Plaintiff's characterization of the funds. They aver that the funds deposited in the joint account are equal to the exact amounts offered by the Plaintiff to the 9th, 11th, 27th, and 28th Defendants. This valuation, they state, was based on the National Land Commission's report dated 19th September 2019, which set compensation at Kshs. 1,200,000.00 per acre. Dr. Naikuni asserts that the Applicants formally communicated their acceptance of this offer on 27th May 2025, a decision that directly prompted the Plaintiff to withdraw the suit against them. 14. Consequently, the Applicants argue that the Plaintiff's withdrawal of the suit extinguishes any justifiable basis for continuing to withhold the funds. They characterize the Plaintiff's argument that the Applicants lack legal standing to seek the release of the funds as irrational and inconceivable, pointing out that the consent giving rise to the joint account originated directly from this ongoing case. Finally, relying on a series of annexed correspondences marked "TTN-1", the Applicants state that the Plaintiff failed to finalize negotiations within an agreed 30-day period despite numerous follow-ups from their Advocates. They contend that all questions relating to the consent and the joint funds must now be determined by this Court. **Directions** 1. The instant application was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling. **Analysis and Determination** 1. I have carefully considered the Notice of Motion dated 23rd March 2026, the supporting affidavit together with the annexures thereto, the Replying Affidavit sworn on behalf of the Plaintiff, and the rival submissions filed by the parties. The sole issue falling for determination is whether the Applicants’ notice of motion is merited. 2. The application before the Court is predicated upon the proposition that, having withdrawn the suit against the 9th, 11th, 27th and 28th Defendants through a Notice of Withdrawal dated 2nd October 2025, the Plaintiff no longer has any lawful basis for withholding the monies deposited in the joint account. The Applicants therefore contend that the continued retention of the funds is unjustified and that the Court ought to compel their release. 3. The Respondent takes a contrary view. It argues that the monies deposited in the joint account were not unconditional compensation payable to the Applicants but were deposited pursuant to a negotiated consent whose implementation was expressly subject to specified conditions. According to the Respondent, those conditions have not been fulfilled. In particular, it is contended that the boundary dispute affecting Parcel No. Kajiado/Purko/156 remains unresolved before the Land Registrar, and that the parties never invoked Clause 7 of the consent to enable the Court determine the final compensation payable. Consequently, the Respondent submits that the Applicants have not acquired an enforceable right to immediate release of the deposited funds. 4. The determination of this dispute must therefore begin with the legal effect of the consent order dated 13th September 2023. It is now settled that a consent judgment or order possesses a dual character. On one hand, it is an order of the Court; on the other, it constitutes a binding contract between the parties. Courts are therefore slow to interfere with such agreements except on well-established grounds recognized in contract law. 5. This principle has recently been reaffirmed by the Environment and Land Court in ***Denman Properties Limited v County Land Registrar Kilifi & 9 Others (2025) KEELC 5383 (KLR)****,* where the Court reiterated that a consent entered into by parties remains binding unless impeached on grounds such as fraud, mistake, misrepresentation or any other ground that would justify rescission of a contract. The Court observed that parties who voluntarily compromise litigation are expected to honour the bargain they have struck and that courts should give effect to such agreements rather than rewrite them. 6. Similarly, in ***EMM v JMC & Another (Environment and Land Appeal E002 of 2023) [2024] KEELC 6417 (KLR)****,* the Court restated the long-established principle that: ***"It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract, or if certain conditions remain to be fulfilled, which are not carried out."*** 1. Although those decisions reaffirm the established jurisprudence of the Court of Appeal in ***Flora N. Wasike v Destimo Wamboko [1988] eKLR*** *and* ***Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266****,* they underscore the modern judicial approach that courts must enforce, rather than vary, the terms freely negotiated by litigants. 2. Applying those principles to the present application, it is evident that the Applicants' claim is anchored principally on the Plaintiff's withdrawal of the suit against them. Undoubtedly, the Notice of Withdrawal had the legal effect of terminating the proceedings against those Defendants. However, that withdrawal did not, in itself, extinguish or vary the contractual obligations embodied in the consent dated 13th September 2023. The consent remains binding upon the parties until fully performed, varied by agreement, or otherwise discharged in accordance with the law. 3. The Court has carefully considered the rival positions regarding the nature of the monies deposited in the joint account. Whereas the Applicants maintain that the sums represented compensation that became immediately payable upon withdrawal of the suit, the Respondent asserts that the deposits merely constituted security to facilitate commencement of the transmission line project pending final resolution of the compensation dispute. The Respondent further maintains that the consent expressly contemplated the fulfilment of certain conditions before the funds could be released. 4. In determining which of these competing positions ought to prevail, the Court is guided by the elementary principle that parties are bound by the terms of the agreement they voluntarily execute. Courts do not make contracts for parties; they merely enforce them. Consequently, where a consent expressly prescribes conditions precedent to the release of monies held in escrow or in a joint account, the Court cannot dispense with those conditions merely because one party considers them inconvenient or because subsequent events have altered the litigation landscape. 5. The Respondent has identified two matters which it contends remain outstanding. First, the unresolved boundary dispute relating to Parcel No. Kajiado/Purko/156, which was to be addressed by the Land Registrar. Secondly, the failure by the parties to invoke Clause 7 of the consent, which allegedly provided the mechanism through which the Court would determine compensation in the event that agreement could not be reached. The Applicants have not placed before the Court sufficient material demonstrating that these matters have either been resolved or expressly waived by the parties. 6. The Court is alive to the Applicants' contention that it would be inequitable for the Plaintiff to continue retaining monies after withdrawing the suit against them. That argument is not without force. Nevertheless, equitable considerations cannot override the express contractual obligations willingly assumed by the parties. As the Supreme Court observed in ***Kenya Airways Limited v Satwant Singh Flora (2013) eKLR***, courts are enjoined to uphold the sanctity of contracts and should not rewrite agreements merely because they appear harsh or onerous to one of the parties. The role of the Court is to enforce lawful agreements as made, not as one party subsequently wishes they had been made. 7. Moreover, the orders sought are in the nature of mandatory orders directing immediate release of substantial sums of money. The law is settled that such relief should only issue where the applicant demonstrates a clear and undisputed legal entitlement. In ***Kenya Breweries Ltd & Another v Washington Okeyo [2002] eKLR****,* the Court of Appeal held that a mandatory injunction at an interlocutory stage ought only to issue in special circumstances and where the Court is satisfied that the applicant's case is unusually clear. Although the present application is not one for a mandatory injunction in the strict sense, the principle is equally applicable because the Court is being invited to compel the release of funds before the underlying dispute concerning fulfilment of the consent has been conclusively resolved. 8. In the present case, the Court cannot conclude that the Applicants' entitlement to the deposited monies is free from controversy. The parties remain in disagreement as to whether the conditions stipulated in the consent have been fulfilled, whether the deposited sums constitute final compensation, and whether the contractual mechanism for determining compensation has been exhausted. Those are not peripheral disputes; they lie at the very heart of the parties' agreement. To direct release of the monies in those circumstances would effectively amount to rewriting the consent rather than enforcing it. 9. Accordingly, I find that although the withdrawal of the suit against the Applicants is a significant development, it does not, standing alone, entitle them to immediate release of the monies held in the joint interest-earning account. The Applicants have failed to demonstrate that the conditions governing release of the funds under the consent dated 13th September 2023 have been satisfied or lawfully dispensed with. Consequently, they have not established a clear legal right to the mandatory orders sought. 10. I therefore find that the Notice of Motion dated 23rd March 2026 is without merit and the same is hereby dismissed but with 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:** Ms. Chesire h/b for Mr. Kipkirui for the Applicants N/A by the Plaintiff/Respondent Court Assistant: Alex **M.D. MWANGI** **JUDGE**