Nduttu & others v Kenya Breweries Ltd (Civil Case 279 of 2003) [2026] KEHC 8806 (KLR) (Civ) (18 June 2026) (Ruling)

Nduttu & others v Kenya Breweries Ltd (Civil Case 279 of 2003) [2026] KEHC 8806 (KLR) (Civ) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8806 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 279 of 2003 Sifuna Nixon, J June 18, 2026 Between Lawrence Nduttu & others Plaintiff and Kenya Breweries Ltd Defendant Ruling 1.This ruling is on the application dated 17th May 2025. The application is supported by the supporting affidavit of George Njigu who is one of the plaintiffs. The affidavit was sworn on 17th May 2025. He has also filed herein his supplementary affidavit, sworn on 16th September 2025. The plaintiffs to which this application relates are 125 in number; and who are represented by Mr Harrison Kinyanjui. The defendant opposed the application through a replying affidavit. 2.The application has cited order 22 rules 18 and 19 of the Civil Procedure Rules, as well as the inherent powers of the court. It is seeking the following orders:1.(Spent).2.Leave to execute the judgment that was delivered in this suit on 24th January 2018.3.An order compelling the defendant to remit to plaintiffs, sums awarded under paragraph 18 of the said judgment and which the plaintiffs claim are unpaid to date.4.The costs of this suit, less the sum of Ksh 1,000,000= that the defendant already paid the plaintiffs.5.Costs of this application. The Parties’ Rival Arguments. 3.This suit was concluded and a judgment was delivered by Sergon J, on 24th January 2018. Which is over eight years ago. Thereafter, the defendant paid the plaintiffs, and the plaintiffs signed discharge vouchers stating that, those were their full and final dues. 4.The parties also executed a consent letter, but the same was not finally adopted by the court as its order. The consent was also to the effect that the defendant had paid these plaintiffs, all their dues. These plaintiffs have by this application, now approached this court, acknowledging that payment, but disowning the said consent. 5.They are contending that they were not paid the full amount, and that the consent is not valid; as that it was not finally adopted as an order of this court. That, to them, the want of subsequent adoption as an order of the court, is fatal to the consent and renders it non-effectual. 6.In prayer (2) of the application, the applicants are seeking leave to execute the decree as it is over two years old. Hence to execute, leave is required under order 22 rules 18 and 19 of Civil Procedure Rules. 7.The applicants have contended that the dues the defendant paid to them do not include the payment in paragraph 18 of the said judgment. Further that the payment covered only the payments in paragraph 14 of the judgment. 8.The defendant on the other hand has contended that this suit was concluded and it paid the plaintiffs all the monies that were due under the judgment. That consequent upon which, the plaintiffs signed discharge vouchers. In which they acknowledged the payment and acknowledged that the payment was in full and final settlement of their dues in this suit. 9.This application was canvassed by way of written submissions. With each side filing its submissions. The applicants’ submissions are dated 25th September 2025, while the defendant’s submissions are dated 6th October 2025. 10.I have read the application (and its two affidavits), the defendant’s replying affidavit, as well as the parties’ rival submissions. Analysis and Determination. 11.This suit was defended. It proceeded to trial, and was concluded through the said judgment of Sergon J on 24th January 2018. Which is more than eight years ago. The judgment was for the defendant to pay the plaintiffs who were its former employees, their terminal dues. 12.After the judgment, the defendant later made payment to the plaintiffs and they signed discharge vouchers. In which they acknowledged not only the fact of payment, but also acknowledged that, that was the full and final payment of their dues under the said judgment. 13.The parties followed that discharge with a consent letter in those terms. But which consent letter was not finally adopted by this court. The applicants have subsequently disowned that consent letter, for reason of want of adoption by the court. That the consent letter is therefore ineffectual, as it was not finally adopted by this court as its order. 14.The issue that this court is to decide, is the legal consequence of the said consent letter not having been adopted as the court’s order. 15.As regards the legal effect of the said consent letter and discharge vouchers, I find that the same are effectual, despite the lack of subsequent adoption or ratification by the court. This is an instance where the doctrine of estoppel applies. 16.Estoppel is based on the principles of equity, justice and good conscience. It applies to prevent one from going back on their word, or contradicting a previous position. Provided it has been relied on by another party. This doctrine is even an evidential rule under the Evidence Act (Cap 80 Laws of Kenya). Section 120 of the Act provides as follows.“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true, and to act upon such belief, neither he or his representative shall be allowed, in any proceeding between himself and such person or his representative, to deny the truth of that thing.” 17.I find that by the doctrine of estoppel and also by dint of the general estoppel rule in section 120 of the Evidence Act, the applicants are estopped from contending that what they were paid was part-payment and not payment of their full and final dues. They are correspondingly estopped from demanding costs on the alleged balance of their dues under the said judgment. 18.In Mbiyu v. Mbiyu & 15 Others [2018] KESC 29 (KLR), the Supreme Court of Kenya observed that the doctrine of estoppel was meant to prevent parties from swinging like a pendulum. 19.For the reasons aforegoing, I find that this application is not only misconceived, but also an abuse of the court process. This application is an attempt by a litigant to walk out of a mutual consent and a mutually binding undertaking. It is an attempt to have a second bite at the cherry. This is a state of affairs that equity frowns upon; and which this court cannot aid. 20.In the end, this application fails and is hereby dismissed. As this suit is a very old one and both parties have endured years of litigating their rival positions, each party shall bear its own costs of the application. DATED AND DELIVERED AT NAIROBI VIRTUALLY ON THIS 18TH DAY JUNE, 2026.PROF (DR) NIXON SIFUNAJUDGE