https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2919

Kenya Power & Lighting Company Ltd v Murungi (Environment and Land Appeal E005 of 2024) [2026] KEELC 2919 (KLR) (13 May 2026) (Ruling) Neutral citation: [2026] KEELC 2919 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Appeal E005 of 2024 JO Mboya, J May 13, 2026 Between Kenya Power & Lighting Company Limited Appellant and Asteria Kawira Murungi Respondent Ruling 1.Before me is the Application dated the 02.04.2026, brought pursuant to the provisions of Sections 26 and 68 of the Land Registration Act, 2012; order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010; and Section 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya. The reliefs sought at the foot of the application are:i.That the Application be certified urgent and be heard on a priority basis.ii.That pending the hearing and determination of this application, and/or pending attachment and sale, the Honourable Court be pleased to issue an order of inhibition restraining the Respondent, Asteria Kawira Murungi, her agents, servants, representatives, assigns, or any other person acting through or under her, from selling, transferring, charging, leasing, subdividing, amalgamating, or otherwise dealing with or disposing of all that parcel of land known as Abogeta-Kiungone/1063 [herein after referred to as the suit property]iii.That the Land Registrar, Nkubu, be directed to register the said order of inhibition against the title of all that parcel of land known as Abogeta-L-Kiungone/1063 forthwith.iv.That the costs of this Application be provided for. 2.The Application is premised on various grounds which have been enumerated in the body thereof. The grounds are: The Respondent herein filed civil proceedings vide Nkubu PMCC No. 55 of 2018 against the appellant; the suit was heard and determined; judgment was entered in favour of the Respondent in the sum of Kshs. 421, 867/= only, together with costs and interest; the costs were subsequently taxed; and the decretal sum amounted to Kshs. 592,884/= only inclusive of the Interest[s]. 3.Additionally, the Appellant has posited that: The Respondent proceeded to and executed against the appellant; the total decretal sum was duly paid to and in favour of the respondent; the Respondent still has the proceeds of the judgment in the lower court. Nevertheless, the Appellant has stated that the appeal beforehand was heard and determined; the judgment of the lower court was set aside; the suit in the lower court was struck out on account of want of jurisdiction; and the Appellant is now entitled to recover the judgment sum that was paid to the respondent. 4.Be that as it may, the Appellant has contended that: the Respondent has failed to refund the decretal sum; the Respondent does not appear to be desirous to refund the decretal sum; the Respondent does not have any known assets save for L R No. Abogeta/L-Kiungone/1063 [the suit property]. 5.Premised on the foregoing, the Appellant now seeks an order of prohibition to be registered against the title of the property as a precondition to executing against the suit property in an endeavor to recover the sum of Kshs. 818,814/= only, being the decretal sum, inclusive of costs and interests. 6.The Respondent filed grounds of opposition dated the 06.05.2026 and a replying affidavit sworn by the Respondent on even date. The Respondent contends that even though the appeal by the Appellant was allowed and the judgment of the lower court set aside, the judge did not decree and or direct refund of the decretal sum. To this end, the Respondent has posited that the claim by the Appellant seeking refund/recovery of the monies that were paid to the Respondent is premature, misconceived and legally untenable. 7.Furthermore, the Respondent has averred that the current application amounts to an attempt by/on behalf of the Appellant to amend the judgment of this court, which attempt ought not to be allowed or sanctioned by the court. 8.According, to the respondent, the application before the court is mistaken and constitutes an abuse of the due process of the court. Consequently, the court has been invited to find that the Application is an abuse of the Court process; strike out the application; and to award costs to the respondent. 9.The subject application came up for hearing on the 13.05.2026, whereupon the advocates for the parties intimated to the court that same were ready to proceed. In addition, the advocates agreed to canvass the application by way of oral submissions. Suffice it to state that the court issued directions pertaining to and concerning the disposal of the application. Indeed, the application proceeded for hearing vide oral submissions. 10.Learned counsel for the appellant/applicant adopted the grounds at the foot of the application; reiterated the averments contained in the body of the supporting affidavit and thereafter submitted that the judgment in the lower court was set aside vide the judgment rendered by this court [differently constituted] on the 31.07.2024. To this end, learned counsel posited that the Respondent therefore has no lawful basis to retain the decretal sum, which was paid on the basis of a decree that has since been set aside; and quashed. 11.Additionally, learned counsel for the Appellant has submitted that the Appellant is only seeking to recover the decretal sum. However, it has been contended that the Appellant has not been able to ascertain the assets of the Respondent save for the suit property. Counsel therefore, implored the court to allow the application and to grant the order of inhibition against the title of the suit property. 12.Learned counsel for the Respondent adopted the contents of the replying affidavit sworn on the 6.05.2026 and the grounds of opposition of even date. Moreover, learned counsel posited that even though the appeal was allowed and the judgment of the lower court set aside, the judge did not order and or direct refund or restitution of the decretal sum. To this end, learned counsel contended there is no legal foundation to warrant the refund being claimed by the appellant. Moreover, Learned Counsel has posited that there is no lawful decree, or at all capable of underpinning the intended order[s]. 13.Learned counsel for the Respondent has equally submitted that the current application by/on behalf of the Appellant constitutes an endeavor to read into the judgment, orders which were not given. Furthermore, it has been posited that the Appellant is trying to amend the judgment of the court and to execute albeit in the absence of an order capable of execution. 14.Pertinently, counsel has submitted that the application is premature, misconceived and legally untenable. In this regard, the court has been invited to dismiss the application. 15.Having reviewed the Notice of Motion application; the supporting affidavit thereto; the replying affidavit; the grounds of opposition and upon taking into account the oral submissions by/on behalf of the respective parties, two [2] key issues crystalize for determination. The issues are: Whether the Appellant is entitled to recover the decretal sum that was paid out to the respondent; and whether the Appellant has established a basis for the issuance of the orders of inhibition or otherwise. 16.Regarding issue number one, it is common ground the Respondent herein filed civil proceedings vide Nkubu PMCC No. 55 of 2018, which suit was heard and determined. In addition, it is conceded that judgment was duly entered in favour of the Respondent in the sum of Kshs. 421,867/= only plus costs and interests. 17.Furthermore, it has been acknowledged that following the delivery of the judgment in the lower court, the costs were subsequently assessed and thereafter the total sum due and payable was computed and same amounted to Kshs. 592,884/= only. Furthermore, there is no dispute that the Respondent herein proceeded to and levied execution against the appellant, culminating into the payment of the entire decretal sum. 18.On the other hand, it is also common ground that the appeal by the Appellant before this court was heard and determined. For good measure, the appeal was allowed and the judgment of the lower court was set aside. In addition, the suit in the lower court was struck out on account of want of jurisdiction. Simply put, the decree that underpinned the payments in favour of the Respondent was quashed and set aside. 19.Insofar as the decree in the lower court was set aside, the Respondent herein was/is obligated to refund/restitute the monies that were paid unto him on the basis of the decree in question. It is worthy to underscore that payment in favour of the Respondent was made in satisfaction of a lawful decree. However, the decree in question has since been set aside and same is now non-existent. 20.Where a decree underpinning payment of decretal sum is set aside, the judgment debtor, in this case, the Respondent is enjoined to restore; refund; and restitute the benefits [if any] that were made on the basis of the impugned decree. Such refund follows as a matter of course and does not necessarily require an express order by the appellate court. Nevertheless, I beg to point out that it is prudent that such an order be made by the appellate court so as to avert the kind of arguments being raised herein. 21.In the case of Dhiman v Shah [2025] KECA 1264 (KLR), the Court of Appeal discussed the legal effect and consequences attendant to the setting aside of a Judgment. 22.The Court state thus:49.It seems clear to us beyond peradventure that this court set aside the entire High Court judgment dated September 16, 1999. The consequence is that all consequential orders that flowed from that ex parte judgment were also, ipso facto, set aside. The result was that the parties were returned to status quo ante: as they were before the judgment was entered. Without the ex parte judgment, the Respondent would have no basis for applying to sell suit property by public auction; and, therefore, would have no basis to bid at such public auction; or obtain a vesting order pursuant to such successful bidding. All these subsequent actions were based on the validity of the ex parte judgment which was set aside by this court. The result is that the sale at public auction as well as the vesting order – both of which were based on the ex parte judgment and derived their validity from it were, by operation of law, set aside by this court’s judgment dated July 31, 2015.49.We readily concede that this court’s judgment would have been much clearer if it had included the phrase “and all consequential orders”. However, the purport of the judgment as is is psychedelically clear: this court intended the parties to return to the High Court for a rehearing of their case. It would have been pointless to so require the parties to rehear their case if, in fact, the subject matter of the suit, the suit property, irreversibly remained in the hands of the Respondent as adjudged by the impugned ex parte order which was set aside. 23.Restitution of the properties or monies [whichever is the case] upon the setting aside of a previous judgment is also regulated by the provisions of Section 91 of the Civil Procedure Act, Chapter 21 laws of Kenya. 24.The section stipulates thus:91.Application for restitution(1)Where and in so far as a decree is varied or reversed, the court of first instance shall, on the application of the party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position they would have occupied but for such decree or such part thereof as has been varied or reversed; and for this purpose the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.(2)No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection (1) 25.My short answer to issue number one is to the effect that the Appellant herein is entitled to recover the entire monies that were paid out to the Respondent on the basis of the impugned decree, which was set aside vide appeal. In addition, the Appellant is also entitled to recover the interest and the costs. In any event, it would be unconscionable for the Respondent to retain the monies that were paid out on the basis of a decree that has since been set aside. 26.It is instructive to state that equity frowns upon unconscionable conduct. 27.Turning to the second issue, namely; whether the Appellant has established a basis to warrant the issuance the orders of inhibition or otherwise. The Appellant contends that same has endeavored to ascertain the assets of the Respondent for purposes of execution. However, the Appellant posits that despite its efforts, same has not been able to establish any other assets of the respondent, save for the suit property. To this end, the Appellant now seeks to procure a prohibitory order as a precursor to levying execution. 28.I beg to state that any execution/attachment of an immovable property, the sui property not excepted, must be preceded with an order of inhibition, to avert any alienation or transfer of the designated property by the owner, during the course of execution proceedings. Notably, the Appellant herein is aware that the Respondent may proceed to transfer or otherwise dispose of the suit property in an endeavour to defeat execution. 29.To my mind, the Appellant has established a basis to warrant the issuance of the orders of inhibition. Suffice it to state that the Appellant has legal right to pursue recovery and restitution of the decretal sum, which was paid out to the respondent. Conclusion. 30.From the foregoing analysis, I come to the conclusion that the Appellant has proven that same is entitled to recover the monies that were paid out to the Respondent on the basis of the decree of the lower court [Nkubu PMCC No. 55 of 2018] which has since been set aside. 31.Additionally, I am also persuaded that a basis has been laid/established to warrant to issuance of an inhibition, whose net effect would be to preserve the status of the suit property pending the execution; and essentially, to avert any actions that may taken by the respondent. Final orders: 32.In the premises, and for the reasons adverted to in the body of the ruling, the final orders that commend themselves to the court are:i.There be and is hereby issue an order of inhibition to be registered against the title in respect of LR No. Abogeta/L-Kiugone/1063 [the suit property].ii.The Land Registrar, Imenti South sub county/Nkubu , be and is hereby directed to register the order of inhibition against the suit property so as to preserve the title and to avert any transactions being taken in respect thereof.iii.Costs of the Application be are hereby awarded to the Appellant.iv.The costs in terms of clause [iii] be and are hereby assessed in the sum of Kshs. 25,000/= only. 33.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 13TH DAY OF MAY, 2026OGUTTU MBOYA, FCIArb;CPM [MTI-EA]JUDGEIn the presence ofCourt Assistant: ZakayoMs. Omondi holding brief for Mr. Mwongela for the Appellant/ApplicantMr. Gikunda Kiutha for the Respondent.