https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4053

Kirobon Farmers Co Ltd v Nyarangi & 7 others (Environment and Land Case 29 of 2017) [2026] KEELC 4053 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELC 4053 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Case 29 of 2017 LC Komingoi, J June 30, 2026 Between Kirobon Farmers Co Ltd Plaintiff and Samwel Onchuru Nyarangi Defendant and Pay Day Auctioneers Respondent and Erick Cheruiyot 1st Objector Dorothy Chelangat Soi 2nd Objector Alfred Kibiegon Cheruiyot 3rd Objector Windy Ridge Company Limited 4th Objector Fine Trade Limited 5th Objector Danamax Investment Limited 6th Objector Ruling 1.The Objectors/Applicants filed the instant application dated 15th December, 2025 seeking the following orders:1.Spent.2.That the Honourable court be pleased to issue an order staying the execution of the decree dated 13 March, 2025 and the attendant warrants/ proclamations dated 13th November, 2025 together with the Advertisement dated 24th November, 2025 over LR. No Molo South Langwenda Block 7/148, 149, 150, 151, 152 & 153 (Formerly Block 17/1) herein, any other consequential orders arising there from pending the hearing and determination of this Application.3.That the Honourable court be pleased to issue an order staying any and or all intended valuations and or sale, of and on the subject matter being LR. No LR. No Molo South Langwenda Block 17/148, 149, 150, 151, 152 & 153 (Formerly Block 17/1) Pending the hearing and determination of this application.4.That the Honourable court be pleased to issue an order staying any and or all intended valuations on the subject matter being L.R No. Molo South Langwenda Block 17/148, 149, 150, 151, 152 & 153 (Formerly Block 17/1) upon hearing and determination of this application.5.That the costs of this application abide the outcome of the suit. 2.The Application was based on grounds set out and supported by the Affidavit of Erick Kiplang’at Cheruiyot sworn on even date. 3.He stated that the court previously awarded costs to the Defendant against the Plaintiff. He stated that the Deputy Registrar quantified these costs at Kshs. 2,345,027. 4.He further stated that following a certificate of costs being issued on 13th March, 2025, warrants of attachment were issued on 13th November, 2025. He added that execution formally commenced when an advertisement was placed in the Standard newspaper by the interested party on 24th November, 2025. 5.He went on to state that the planned auction was unlawful and highly prejudicial since the interested party targeted the wrong assets. He added that it sought to recover the debt owed by the Plaintiff by attaching properties that actually belong to the Applicants. 6.He stated that the targeted suit property was not standard agricultural land but a prime forest and farm jointly owned and managed with the Kenya Forest Service. He added that it contained approximately 100 acres of mature and younger trees. 7.He stated that the ongoing valuation and potential sale threaten the very substratum of the property and will cause irreparable harm. 8.He further stated that the interested party breached mandatory due process by failing to serve them procedurally and that the proclamation was illegal. He added that the mandatory legal requirements for executing a decree were grossly violated. 9.He also stated that the Plaintiff was embroiled in a longstanding legal tussle exposing third parties like the Applicants to collateral risks. He urged the court to intervene and stay the execution of the warrants. 10.He added that they wanted their specific titles and properties explicitly excluded from the tracing, assessment and attachment actions being carried out by the interested party on behalf of the Defendant. Defendant’s Response 11.The Defendant filed his replying affidavit sworn on 21st January, 2026 where he averred that the Applicant’s application was incompetent and abuse of the court process. 12.He averred that judgment was delivered on 21st June, 2022 which conclusively declared that the suit land L.R Molo South/Langwenda Block 17/1 rightfully belonged to him and the beneficiaries of the estates of the late James and Margaret Nyarangi. 13.He further averred that the court cancelled the certificate of title previously issued to the Plaintiff on 21st March, 2016 and awarded him costs of the suit. 14.The Defendant averred that a certified copy of the suit land’s green card did not show any of the alleged subdivisions. He added that the titles the Applicants relied on were already cancelled by the court and the Chief Land Registrar, as evidenced by published gazette notices. 15.He averred that he never participated in any sale or transfer of the property to the Applicants and thus they had no legal or equitable interest in the suit property. 16.Despite the objectors claiming that a Justice Ombayo reinstated their certificates of title, they failed to produce any court order or ruling to support this allegation. 17.He further averred that being justified to proceed with the execution proceedings, on 14th April, 2025, Tango Auctioneers were issued warrants to attach immovable property, but investigation revealed the Plaintiff had no valuable movable assets capable of satisfying the decree. 18.Consequently, he applied to the court to sell immovable goods specifically, trees illegally planted by the Plaintiff on the property where the court allowed this via a consent order dated 30th June, 2025. 19.He went on to aver that Tango Auctioneers failed to execute the warrants, after which the warrants were re-issued to the interested party. He averred that the entire process was conducted lawfully. 20.The Defendant averred that the Applicants had previously obtained temporary orders in a separate case (Nakuru ELC No. E067 of 2024) but the said orders were set aside on 6th October, 2025 since they failed to disclose material facts. 21.In conclusion, he averred that the Applicants failed to establish any legal or equitable interest in the property or the immovable assets for attachment. He maintains that the Applicants will not suffer any legal harm or prejudice. 22.He urged the court to dismiss the application with costs. Interested Party’s Response 23.The interested party through its representative Daniel Wanjama filed his replying affidavit sworn on 21st January, 2026. 24.He averred that the application was an abuse of the court process. He added that they followed due process in executing the court's orders. 25.He further averred that on 2nd July, 2025 parties agreed by consent that the Defendant would sell movable goods specifically, trees illegally planted on Land Parcel No. Molo South/langwenda Block 17/1 (Seguton) to execute a certificate of costs. 26.He went on to aver that they received instructions from the Defendant's advocates to take over the process from Tango Auctioneers. He added on 11th November, 2025, that they were issued with warrants of attachment and sale directing them to recover a total of Kshs. 2,352,027.00. 27.He averred that he advertised the planned sale via The Standard newspaper and on 24th November, 2025, they wrote a letter to the Deputy Registrar of the Environment and Land Court, confirming that the 30-day advertisement period had been initiated and notifying the court that the public auction had been slated for 16th December, 2025. 28.He also averred that prior to the scheduled auction, he wrote to the Forest Inventory Office in Nakuru County on 5th December, 2025 requesting them to conduct an urgent valuation report of the trees to ascertain their true value. 29.He averred that every step of the execution process from obtaining warrants to the advertisement and valuation of the trees was done in accordance with the law. 30.He averred that the Applicants were undeserving of the orders sought. He urged the court to dismiss their application with costs. Plaintiff’s Response 31.The Plaintiff through its director Daniel Kandie filed his replying affidavit sworn on 17th April, 2026 where he averred that judgment was delivered on 21st June, 2022 which legally declared the Defendant as the lawful owner of the suit property LR No. Molo South/Langwenda Block 17/1 (Seguton)). 32.He averred that since the land belongs to the Defendant, the trees situated on the property are considered attachments to the land by operation of law, falling strictly under the Defendant's proprietary rights. 33.He averred that it was necessary that the trees be sold since the Plaintiff and Defendant entered into a lawful consent to sell the trees specifically to settle taxed costs amounting to Kshs. 1,180,953.50 which had been awarded to the Defendant. 34.He further averred that the Applicant had no legal basis to stop the sale of trees on land that the court had already determined its ownership. 35.He went on to aver that the Applicants were interlopers whose sole intention was to frustrate a valid court decree. 36.He urged the court to dismiss the application Applicant’s Response 37.The Applicant filed his supplementary affidavit sworn on 16th May, 2026 where he stated that the Defendant and his agents had interfered with the suit properties. 38.He stated that an individual by the name David Juma, allegedly acting on the Defendant's behest, entered the parcels with tractors and ploughed the land. He added that the Defendant had previously cut down trees on the property. 39.He stated that the said actions undermine the existing status quo orders that were meant to protect the properties. 40.He further stated that he was apprehensive that the Defendant had colluded with rogue officials at the registry in an attempt to de-gazette the suit land and enlist third parties to encroach upon the parcels. He added that if the said actions are not stopped, the subject matter of the lawsuit will be dissipated causing irreparable harm. 41.He went on to state that by virtue of a court order from Nakuru ELC Case No. 29 of 2017, the said cautioned the and other parties against trespassing or dealing with the land without consent and mandated them to restore the status quo obtained before the court. 42.He stated that the Defendant was in contempt of court and that there was need to secure immediate judicial protection against the destruction of the disputed property. Submissions 43.Counsel for the Applicants filed his submissions dated 20th April, 2026 where he identified two issues for determination, whether the Applicant’s objection is merited and whether the consent concluded on 30th June, 2025 is valid. 44.On the first issue, while submitting in the affirmative, he argued that they were the registered owners of the suit properties (L.R. No Molo South Langwenda/Block 17/148, 149, 150, 151, 152 & 153), yet they were entirely excluded from the suit and the resulting judgment. 45.He submitted that the Defendant fraudulently concealed their proprietary interests and attempted to attach properties he did not own. 46.He relied on Order 22 Rule 51(1) of the Civil Procedure Rules and the case of Shivji Naran Virji V Ogla Jemeli Baring'otuny [2021] eKLR 47.He further relied on Section 6 of the Civil Procedure Act and submitted that proceeding with the attachment would violate the sub judice principle since the concurrent suits intended to preserve the land parcels until the active disputes were determined. 48.On the second issue, he submitted that the consent order reached between the Plaintiff and Defendant on 30th June, 2025 to vary immovable goods for attachment was irregular, unlawful and void. 49.He argued that the advocates who entered into the consent Kipruto Gitau and Company Advocates acted without proper authorization from the 1st Plaintiff company. He added that the directors purportedly steering the company had expired terms and lacked the capacity to issue instructions or pass a board resolution. He relied on the case of Assia Pharmaceuticals V Nairobi Veterinary Centre Ltd. Nairobi (Milimani) HCCC No. 391 of 2000. 50.It was counsel’s submission that individuals that masqueraded as the company's directors lacked the legal capacity to act as its agents. He argued that the resulting consent order fails due to an incapacity to contract. He cited the case of Board of Trustees National Social Security Fund V Micheal Mvalo [2015] eKLR 51.In conclusion, he submitted that proceeding with the attachment would violate the doctrine of lis pendens and the principle of sub judice which are intended to preserve the suit parcels pending the concurrent suit and the appeal. Analysis and Determination 52.This court has considered the application and the main issue for determination is whether the application is merited. 53.It is not in dispute that judgment was delivered in this case on the 21st of June 2022, in favour of the Defendant(Judgment Creditor).On the 13th March 2025, the certificate of costs dated 20th January 2025 was taxed by consent of the parties at Kshs2,345,027.00 inclusive of VAT.By the warrant of Attachment dated 11th November 2025, Pay Day Auctioneers were directed to execute the Decree by attachment of the Plaintiff/Debtor’s movable properties.The said Pay Day Auctioneers were also issued with warrant of sale of property in execution of the decree. The Decretal sum sought was Kshs2,352,927.00The auction was to be held on the 16th December 2025 hence this application. 54.In the case of Nyatera V Nyakundi (Civil Appeal E033 of 2022) [2023] KEHC 3086 (KLR), the court held as follows:“Order 42 Rule 6 (1) and 2 of the Civil Procedure Rules requires an Applicant seeking for orders for stay of execution to establish that he/she has a sufficient cause for seeking the orders, that he stands to suffer substantial loss if the orders are not granted and lastly, that he is willing to furnish security for the due performance of the decree.” 55.It is the Applicants claim that it was never involved in the matter leading to the delivery of judgment. They claimed that the planned auction was unlawful and highly prejudicial since the interested party targeted the wrong assets. 56.They argue that the same sought to recover the debt owed by the Plaintiff by attaching properties that belonged to them. 57.The Plaintiff, Defendant and the interested party objected to the Applicant’s contention on the ground that there was a consent dated 30th June, 2025 agreeing to the sale of the attachable property in this case trees on the suit properties. 58.The interested party contends that the execution process leading to the proclamation was also conducted in accordance with the law. 59.I have perused the court record and it is not in dispute that on 30th June, 2025 counsel for the Plaintiff and Defendant recorded a consent to the effect that the Defendant sells the immovable goods to wit trees that had been illegally planted on the suit parcel in execution of the certificate of costs. 60.It was the Applicants’ claim that there was no board resolution that had been passed giving the counsel on record for the Plaintiff to represent it in the said consent. 61.It is this court’s view that on 11th March, 2025, the Plaintiff’s counsel filed a Notice of Change of Advocates allowing the firm of Kipruto Gitau & Co. Advocates to come on record in place of Ochieng Gai & Co. Advocates. 62.In the case of Flora N. Wasike Vs Destimo Wamboko (1982-1988) IKAR 625 the Court stated thus;“It is now well settled law that a consent judgment or order has a contractual effect and can only be set aside on grounds which could justify setting a contract aside, or if certain conditions remain to be fulfilled which are not carried out”. 63.Similarly in the case of Hirani Vs Kassam (1992) EACA 131 the Court of Appeal of East Africa held that:-“Prima facie any order made in the presence and with the consent of the counsel is binding on all parties to the proceedings for action and on those claiming under them….. and cannot be varied or discharged, unless obtained by fraud or collusion, or if the consent was given without sufficient material facts, or in misapprehension, or in ignorance of material facts, or in general for a reason which would enable a court to set aside an agreement” 64.I find that the counsel on record for the Plaintiff was thus properly on record and that the consent entered into between the parties was regular. 65.I have also perused the court record and it is not in dispute that the interested party indeed followed the due process with regard to the execution of the decree. 66.I have also considered the entries in the title deed for the suit property and nowhere does it have the Applicants’ names. I find that the Applicants have not shown any sufficient cause to warrant granting of the stay orders. 67.The upshot of the above is that the application dated 15th December, 2025 lacks merit and it is hereby dismissed. 68.Each party shall bear their own costs. 69.It is so ordered. RULING, DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 30TH DAY OF JUNE 2026.L KOMINGOIJUDGEIn presence ofNo appearance for the PlaintiffMr. Chumba for Ms. Sang for the Defendant and the Interested PartyMs Nduati for Mr. Biko for the Objectors/ApplicantsCourt Assistant : Irene/Derrick