https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8087

Mediheal Group Limited v Jomuki Auctioneers & another (Civil Suit E010 of 2024) [2026] KEHC 8087 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8087 (KLR) Republic of Kenya In the High Court at Eldoret Civil Suit E010 of 2024 JM Chigiti, J June 9, 2026 Between Mediheal Group Limited Plaintiff and Jomuki Auctioneers Defendant and National Bank Of Kenya Limited Third party Ruling 1.By way of Notice of Motion dated 19th January 2026 the Applicant seeks the following orders;a.Spent.b.Spent.c.This Honourable Court be pleased to adopt the Settlement Agreement dated 9th September 2025 and executed on 21stSeptember, 2025 between the Third Party and the Plaintiff as conclusive settlement of the dispute forming the substratum of this suit.d.This Honourable Court be pleased to mark this suit as settled, upon adoption of the said Settlement Agreement dated 9th September 2025.e.This Honourable Court be pleased to vacate, set aside and discharge the temporary injunctions issued on 13th November, 2024 against the Defendant.f.The costs of this Application be in the cause. 2.The Application is expressed to be brought under Order 25 Rule 5, Order 40 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, and all other Enabling Provisions of the Law. 3.The Application is premised on the grounds on the face of the application and the averments of Morris S. Tiema in the Affidavit sworn in support of the Application. 4.He deponed that pursuant to the Plaintiffs’ application dated 28th May 2024, this Court issued a temporary injunction on 13th November 2024, restraining the Defendant from interfering with the Plaintiffs property pending the hearing and final determination of the suit. Further, that by an application dated 20th January 2025, the Defendant sought and was granted leave by this Honourable Court to issue a Third-Party Notice against National Bank of Kenya Limited, whereupon the Bank was duly joined in these proceedings. Following the Bank's joinder as a Third Party, the Plaintiff approached the Bank with a request for a restructuring of the outstanding loan facilities advanced to it, with a view to resolving the issues giving rise to the dispute herein. 5.The deponent averred that the Bank engaged the Plaintiff in negotiations on a without-prejudice basis, which negotiations culminated in the Third Party and the Plaintiff entering into a Pull and Final Settlement Agreement dated 9th September 2025, which Agreement was subsequently executed on 21st September 2025. He annexed and marked as AM-1 a copy of the settlement agreement dated 9th September 2025. Further, that under the said Settlement Agreement, the Plaintiff's request for a full and final settlement of the total outstanding indebtedness in the sum of Kshs. 351,035,320.00 was approved at the reduced sum of Kshs. 265,000,000.00, subject to express terms and conditions. 6.The material terms of the Settlement Agreement included, inter alia, that;i.The approved settlement sum of Kshs. 265,000,000.00 was to be paid within sixty (60) days from the date of the settlement letter;ii.Upon execution of the Settlement Agreement, the Plaintiff would cause a suitable consent to be recorded in Court, marking this suit as fully settled as between the parties;iii.The consent to be adopted would expressly provide that in the event of default in payment of the agreed sum within the stipulated sixty (60) days, the Bank would be at liberty to resume recovery action and to generally exercise all remedies available to it under the applicable security documents without impediment; andiv.Upon full settlement of the agreed amount, the Bank would discharge and release the securities held in respect of the facilities. 7.The Settlement Agreement further expressly provided that failure by the Plaintiff to comply with the stipulated timelines and conditions would result in the automatic cancellation of the settlement offer, whereupon the Bank would be entitled to proceed with the exercise of its statutory power of sale and recover the entire outstanding debt without further reference to the Plaintiff. 8.The Settlement Agreement was intended to comprehensively resolve all matters giving rise to this suit and to bring the dispute between the Plaintiff, the Defendant and the Third Party to a final and conclusive end. 9.Notwithstanding the execution of the Full and Final Settlement Agreement, the Plaintiff failed to comply with its material terms within the stipulated timelines. In particular, the Plaintiff failed to remit the agreed settlement sum of Kshs, 265,000,000.00 within the sixty (60) days expressly provided for under the Settlement Agreement. 10.The Plaintiff further failed and/or neglected to cause a consent marking this suit as fully settled to be adopted by this Honourable Court, as was expressly contemplated and required under the Settlement Agreement. This is despite the Bank's advocates duly preparing a suitable draft consent in accordance with the agreed terms and formally transmitting it to the Plaintiff's advocates for approval, execution, and adoption in Court.He Annexed and marked as AM-2 a draft consent and the forwarding letter dated 1st October 2025. 11.Despite receipt of the draft consent, the Plaintiff failed, refused, and/or neglected to execute the same or to take steps to have it adopted by this Honourable Court within the agreed timelines or at all. By reason of the Plaintiff's non-compliance with the Settlement Agreement, the conditions precedent to compromise and closure of this suit were not fulfilled. 12.Counsel urged that the Plaintiff's failure to adhere to the agreed timelines and obligations triggered the consequences expressly provided for under the Settlement Agreement. It has therefore become necessary for the Bank to move this Honourable Court for appropriate orders to give effect to the legal and contractual position arising from the Settlement Agreement and the Plaintiff's default thereunder. 13.In light of the execution of the Settlement Agreement, the substratum of this suit has been fundamentally altered, and the issues which necessitated the issuance of the temporary injunction of 13th November 2024 have been overtaken by events. He urged that the temporary injunction no longer serves any legal or equitable purpose, as the dispute has been resolved by the said Settlement Agreement. The adoption of the Settlement Agreement and the lifting of the injunction will allow parties to implement the agreed terms without further litigation, thereby promoting finality and judicial efficiency. Respondents’ Case; 14.The Plaintiff filed a replying affidavit dated 8thMarch 2026 sworn by Maryline Chepkosgei Langat, the plaintiff’s manager. She deponed that the Application is misconstrued, ill-conceived for the defendant to seek for setting aside of injunctive orders issued in this case and ask for this case to be settled over an alleged settlement agreement. 15.Further, that the defendant is using mischievous means to determine the suit instead of complying and proceeding with the same to its logical conclusion. It is clear from the record that the defendant is unable to comply hence is looking for a way out. 16.The deponent averred that it is true that the third party was enjoined in this suit as the principal debtor and that she has been advised by their director Ranjan Mishra that the defendants director approached him with an agreement that was to settle part of the debt by refinancing. However, upon signing the said document it emerged that it was the plaintiff to pay the Kshs 265,000,000 and not a refinance. She averred that therefore, the said signature and/ or consent was obtained fraudulently and material facts were not disclosed to the plaintiff. 17.She urged that the defendant cannot force the recording a consent on a letter that was done on a without prejudice basis. She maintained that they are ready to have this matter determined on merit and not on technicalities. 18.Further, that they are not amenable to that consent for the reason that the same was obtained under coercion, without full disclosure to the plaintiff's director. That is why the consent is totally different from the court document and this is the clear expression of misrepresentation. Applicants’ Submissions; 19.Counsel for the Applicant identified the issues for determination and proceeded to submit on the same. 20.On Whether the Settlement Agreement on a without prejudice basis is admissible, Counsel urged that the Plaintiff indeed acknowledges the existence of the said full and final settlement agreement. However, the Plaintiff states that its director only agreed to execute it because it was on a without prejudice basis. Therefore, since the agreement was done on a without prejudice basis, then the same cannot be enforced against the Plaintiff. 21.On the other hand, the Third party humbly submits that although on the face of it the Full and Final Settlement Agreement dated 9th September 2025 is denoted with the words "without prejudice", the same is admissible before this court. 22.Counsel urged that the statutory provision that forms the foundation of the without prejudice rule in Kenya can be traced to section 23(1) of the Evidence Act which he reproduced and submitted that the law on "without prejudice" communications is well settled. Its primary purpose is to encourage parties to engage in candid settlement negotiations without fear that admissions made in the course of such negotiations will later be used against them in court. This principle was discussed by Justice Njoki Mwangi in Mumias Sugar Co. Ltd & another v Beatrice Akinyi Omondi [2016] KEHC 5129 (KLR) and County Government of Busia v Trident Insurance Company Limited [2025] KEHC 949 (KLR) and Kenya Institute of Management v Wakhanu (Appeal E066 of 2024) [2025] KEELRC 133 (KLR). 23.Counsel urged that the Third-Party Applicant therefore submits that the protection afforded by the "without prejudice" rule ceases to apply once an offer made on a without prejudice basis is accepted, or where negotiations culminate in a definite compromise between the parties. 24.Although the negotiations leading to the agreement were commenced on a without prejudice basis. The bank in its full and final settlement letter dated 9th September 2025, states partly thus:“We refer to the above facility and your previous correspondence regarding settlement. We are pleased to inform your that the request for full and final settlement has been reviewed and approved at Kshs. 265,000,000.00 subject to the following conditions: ..." 25.The mere fact that the bank accepted the request for full and final settlement by the Plaintiff, that alone created a binding agreement. However, the letter went further and provided for acceptance as follows:“I Dr. Swarup Ranjan Mishra 1D/PP No. 32080786 on behalf of Mediheal Group Limited agree to the terms of this letter." 26.That acceptance and the execution of the Settlement Agreement on 21st September 2025 by Dr. Swarup Ranjan Mishra, on behalf of the Plaintiff, rendered the agreement definite and binding, thereby converting the without prejudice negotiations into a concluded contract and lifting the evidentiary protection ordinarily accorded to without prejudice communications. 27.Consequently, the Settlement Agreement constitutes admissible evidence of the compromise reached between the parties and may properly be relied upon by this Honourable Court. In light of the foregoing, the Applicant urged that the Settlement Agreement dated 9th September 2025 is admissible, valid, and binding upon the parties and prayed that this Court finds so. 28.On whether the Settlement Agreement was obtained fraudulently, under coercion and material non-disclosure; Counsel referred to paragraph 3 of the Plaintiff's Replying Affidavit sworn on 5thMarch 2026 by Maryline Chepkosgei Langat, and urged that the averment therein is plainly inadmissible and of no probative value. 29.The deponent merely states that she was "advised by Ranjan Mishra" regarding the alleged circumstances under which the document was signed. This is pure hearsay, as the deponent does not claim to have been present during the alleged discussions nor does she disclose the basis upon which she has personal knowledge of the matters deponed to. 30.Counsel urged that it is trite that affidavits must be confined to facts within the deponent's personal knowledge, save where matters of information and belief are expressly disclosed together with the sources and grounds thereof. In the present instance, the deponent attempts to advance serious allegations of fraud and misrepresentation through second-hand information without placing before the Court any admissible evidence from the alleged source, namely the said Ranjan Mishra. 31.Consequently, the averment amounts to inadmissible hearsay and an improper attempt to introduce allegations of fraud without evidentiary foundation, and the Court ought to disregard it in its entirety. Further, the allegation that the signature and/or consent was obtained fraudulently is wholly untenable both in law and in fact. 32.Allegations of fraud are serious imputations which must not only be specifically pleaded but must also be supported by clear and cogent particulars. It is trite law that fraud must be distinctly alleged and distinctly proved; it cannot be inferred from vague or generalized assertions. 33.In the present instance, neither the Plaintiff's pleadings nor the said affidavit sets out any particulars of the alleged fraud, the manner in which it was perpetrated, the persons involved, or the specific misrepresentations allegedly made. The bare assertion that the document "emerged" to mean something different from what was allegedly intended is plainly insufficient to sustain an allegation of fraud. 34.In addition, the law is settled that the standard of proof for fraud is higher than on a balance of probabilities, though not as high as beyond reasonable doubt. Such allegations therefore require strict proof through credible and direct evidence. 35.The Plaintiff has placed no such evidence before the Court. Instead, the deponent relies entirely on second-hand information allegedly obtained from one Ranjan Mishra, who has not sworn any affidavit to support the serious allegations attributed to him. In the absence of such evidence, the allegation of fraud is not only unsubstantiated but is also improperly introduced through inadmissible hearsay. 36.Equally unfounded is the assertion that material facts were not disclosed. The deponent does not identify what specific material facts were allegedly concealed, by whom they were concealed, or how such non-disclosure induced the execution of the document in question. An allegation of material non-disclosure, much like fraud, must be precisely particularized, demonstrating the existence of a duty to disclose, the facts withheld, and the causal link between the alleged concealment and the impugned transaction. No such particulars have been provided. 37.In the circumstances, the impugned averment amounts to nothing more than a speculative and unparticularized allegation of fraud and non-disclosure, unsupported by admissible evidence and incapable of meeting the strict legal threshold required for such claims. The Court ought therefore to disregard the said averment in its entirety. 38.Counsel urged that a plain reading of the Agreement for Full and Final Settlement demonstrates that its terms are clear, unequivocal and incapable of any alternative interpretation. The document expressly sets out the parties, the nature of the debt in issue, and the agreed mechanism by which the parties intended to settle the outstanding liability. There is therefore no ambiguity on the face of the agreement that would support the Plaintiff's assertion that the document was intended to be something other than what it expressly provides. 39.It is a settled principle of contractual interpretation that where the language of a written agreement is clear and unambiguous, the Court must give effect to the ordinary meaning of the words used by the parties and cannot rewrite the parties' bargain. Parties who execute a written agreement are bound by its terms unless vitiating factors such as fraud, misrepresentation, or mistake are properly pleaded and strictly proved, which has not been done in the present case. 40.Counsel urged that in the circumstances, the Agreement for Full and Final Settlement speaks for itself. Its terms are plain, deliberate and definitive, and the Plaintiff cannot now seek to avoid the clear consequences of a document that was freely executed by its authorized representative by introducing vague and unsupported allegations that contradict the express wording of the agreement. 41.On the issue whether the Settlement Agreement can be adopted as an Order of the Court, Counsel urged that it should. He cited Article 159 of the constitution and urged that the concept of adoption of consent and lawful agreements between parties is enshrined in Order 25, rule 5 (1). Reliance was placed on Asanyo & 3 others v Attorney General [2018] KESC15 (KLR) and Edward Acholla -v- Sogea Satom Kenya Branch & 2 others [2014J KEELRC 1498 (KLR). 42.He urged that in the present case, there exists a clear, written and executed full and final Settlement Agreement dated 9thSeptember 2025. The 1st Respondent approached the Applicant requesting restructuring of its outstanding loan of Kshs. 351,035,320.00 and following the 1st Respondent's request was approved for payment of Kshs. 265,000,000.00 as full and final pay met of outstanding indebtedness, under (i) of the settlement agreement. 43.The Settlement agreement was subsequently executed on 21st September, 2025 by Director, Dr. Swarup Ranjan Mishra, on behalf of the Plaintiff confirming acceptance of the sentient agreement ​terms. He reproduced the terms of the settlement agreement and urged that clause (i) of the Settlement Agreement unequivocally states that upon execution of the agreement, the present suit would be marked as fully settled between the parties. 44.Additionally, in the Plaintiff's Plaint dated 29th May 2024, the principal cause of action was the Plaintiff's challenge to the Applicant's intended auction of the Plaintiff's charged properties to recover the outstanding debt. The Plaintiff sought, inter alia, orders declaring the intended auction null and void and the issuance of a permanent injunction restraining the Third Party or its agents from exercising its statutory power of sale. 45.However, clause (ii) of the Settlement Agreement expressly provides that in the event of failure to settle the agreed sum of Kshs. 265,000,000.00 within the stipulated sixty (60) days, the Applicant would be at liberty to resume recovery action and exercise any remedies available under the security documents. From the foregoing, it is evident that the Settlement Agreement resolved the dispute forming the basis of the present suit, and the parties clearly contemplated that the matter would be marked as fully settled upon compliance with the terms of the agreement. 46.Having demonstrated that the Settlement Agreement settled the issues in dispute between the parties, the Applicant respectfully prays that this Honourable Court finds that the Settlement Agreement dated 9th September 2025 ought to be adopted as an Order of the Court, thereby constituting a consent judgment, and that the same be given full legal effect. 47.On the issue whether the Temporary Injunction should be vacated and discharged, Counsel urged that in light of the Settlement Agreement dated 9th September 2025, the temporary injunction issued on 13thNovember 2024 ought to be discharged and vacated. He cited Order 40 Rule 6 and 7 of the Civil Procedure Rules, 2010 and Allas Copco Customer Finance AB v Polarize Enterprises [2016] KEHC 7640 (KLR) in support of his submissions. 48.Counsel urged that in the present matter, the temporary injunction issued on 13th November 2024 was granted against the Defendant in order to stop the auction of the Plaintiff's properties and preserve the status quo pending the determination of the suit. That by executing the full and final Settlement Agreement dated 9th September 2025, the Plaintiff unequivocally acknowledged the outstanding indebtedness to the Applicant Bank. The agreement further granted the Plaintiff a period of sixty (60) days within which to settle the agreed sum, and expressly provided that upon default, the Bank would be at liberty to resume recovery actions under the security documents. That this thereby renders the continued existence of the temporary injunction unnecessary and unjustified. 49.Additionally, in a letter dated 19th January 2026 from the Plaintiff's Counsel, it was indicated under paragraph 2 that the Plaintiff was agreeable to the properties being sold at market value with their involvement, with any surplus proceeds to be refunded to them. This further demonstrates that the dispute surrounding the exercise of the Applicant's statutory power of sale has substantially shifted from the position that existed when the injunction was granted. 50.Counsel cited Mateli v Kieti [2023] KEMC 289 (KLR), and urged that the discharge of the temporary injunction will not occasion any injustice, particularly in light of the parties' subsequent Settlement Agreement and the admitted indebtedness. In the premises, the temporary injunction issued on 13th November 2024 is ripe for discharge and setting aside, and prays that this Honourable Court vacates the said orders in their entirety. Analysis & Determination; 51.The following is the issue arise for determination; whether the court should adopt the Settlement Agreement dated 9th September 2025 as conclusive settlement of the dispute forming the substratum of this suit. 52.The crux of the Application is that the Applicant seeks to have the court admit a letter dated 9thSeptember 2025 as a conclusive settlement of the dispute that forms the sub stratum of the suit. The contents of the letter are, in a nutshell, conditions binding the respondent and terms agreed upon between the parties, including a requirement that the plaintiff record a consent marking the matter as settled. Essentially, the Appellant seeks to enforce the settlement letter. 53.The Application is premised on Order 25 rule 5 which provides as follows1.Where it is proved to the satisfaction of the court, and the court after hearing the parties directs, that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the court shall, on the application of any party, order that such agreement, compromise or satisfaction be recorded and enter judgment in accordance therewith.2.The Court, on the application of any party, may make any further order necessary for the implementation and execution of the terms of the decree. 54.The compromise of the present suit is premised on the settlement agreement dated 9th September 2025 and executed on 21st September 2025 by Swarup Rajan Mishra. The respondent averred that the signature was obtained fraudulently through the failure of disclosure of material facts to the director, Swarup Rajan Mishra. It is trite law that he who alleges must prove. 55.He who alleges must prove, this position is succinctly captured in Sections 107, 109 and 112 of the Evidence Act. Section 107 provides as follows:“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 56.Sections 109 and 112 of the same Act states as follows:“109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.112.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 57.In discussing the standard of proof in civil liability claims in this jurisdiction, the Court of Appeal in Mumbi M'Nabea v David M. Wachira [2016] eKLR stated as follows:“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. 58.A fundamental principle of fraud is that the same must be specifically pleaded and proved. This was aptly expressed in Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently” 59.Indeed, fraud cannot be inferred from facts. In Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) v Stephen Njoroge Macharia [2020] eKLR, the Court of Appeal observed as follows:“In the instant case, the appellants needed to not only plead and particularize the fraud, but also lay a basis by way of credible evidence upon which the Court would make a finding that indeed there was fraud….” 60.As regards the burden of proof in matters fraud, the same is higher than that required in civil cases, that of proof on a balance of probabilities; and lower than that required in criminal cases being beyond reasonable doubt. The Court in Moses Parantai & Peris Wanjiku Mukuru (supra), observed as follows:“…. Fraud is a quasi-criminal charge which must, as already stated, not only be specifically pleaded but also proved on a standard though below beyond reasonable double doubt, but above balance of probabilities…” 61.There was no evidence tendered as to the lack of disclosure other than an averment that the facts were not disclosed to the Director in the application before the court. 62.Additionally, given the standard of proof for an allegation of fraud, at the very least one would expect that the Director would have sworn an affidavit with regards to the non-disclosure. 63.The respondent did not particularise the alleged fraud. 64.It is therefore my considered view that the same was an afterthought in order to disown the agreement he entered into. Whether the ‘without prejudice agreement’ is admissible. 65.The respondent contends that the agreement is not admissible as it was on a ‘without prejudice’. Section 23 of the Evidence Act provides as follows;a.In civil cases no admission may be proved if it is made either upon an express condition that evidence of it is not to be given or in circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given. 66.Generally, “without prejudice” correspondence has been considered inadmissible. 67.In Geology Investments Ltd V Behal t/a Krishan Behal & Sons [2002] 2KLR 447 Mwera J. captured the rationale of the rule as follows;The rubric “without prejudice” has been used over ages particularly in correspondence between counsel for litigating parties to facilitate free and uninhibited negotiations to explore settlements of dispute. Until such time as there is a definite agreement on the issues at hand, such correspondence cannot be used as evidence against any of the parties. The rubric simply means “I make you an offer, if you do not accept it, this letter is not to be used against me. Or I make you an offer which you may accept or not, as you like, but if you do not accept it, my having made it is to have no effect at all”. It is a privilege that is jealously guarded by the courts otherwise parties and their legal advisers would find it difficult to narrow down issues in dispute or to reach out of court settlements”. 68.Without prejudice was defined in Walker V Wilsher [1889] 23 QBD 335 at 337 where Lindley L J defined the words “without prejudice” as follows:“I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted, a complete contract is established, and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one” 69.This court however notes that there are exceptions to the general rule. 70.In Lochab Transport Ltd V Kenya Arab Orient Insurance Ltd [1986] eKLR, the Court observed that:… if an offer is made “without prejudice” evidence cannot be given on this offer.If this offer is accepted is accepted a contract is concluded and one can give evidence of the contract and give evidence of that ‘without prejudice’ letter”. 71.Additionally, the Court of Appeal in Heineken East Africa Imports Co. Ltd & Another V Maxim Ltd [2024] KECA 625 (KLR) the Court expressed itself as follows: -…It is notable that the contents of a communication made "without prejudice" are only admissible in certain exceptional circumstances, including when there has been a binding agreement between the parties arising out of it, or for the purpose of deciding whether such an agreement has been reached, and to the fact that such communication have been made is also admissible to show that negotiations have taken place, but not is contents, which are otherwise not admissible. With due respect to counsel, the circumstances they rely on to admit the letter dated 26th January 2016 are events that took place before the said letter was written and do not fall within these exceptions.Any doubts, conflicts, differing interpretations with regard to the “without prejudice” notice of termination must in the circumstances therefore be construed against the originator of the notice”. 72.In the present suit, a binding agreement arose from the ‘without prejudice’ full and final settlement letter. 73.This court notes that the actual correspondence ended up being the agreement which is slightly different from the conventional situation where the correspondences lead to the entering into a separate agreement. 74.However, it is my considered view that in principle, there are pertinent similarities and therefore, this situation falls within the exceptions that would make the agreement inadmissible. 75.Consequently, as the agreement settles the dispute herein, all temporary injunctions issued are overtaken by events and the Applicant is at liberty to enforce the terms of the agreement that is the subject of the Application. 76.The Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KLR held as follows:“(49)[49] Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and Section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 77.In the instant application, this court is of the view that the applicant had proven its case. On the issue of costs; 78.In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed:“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied]. 79.The Civil Procedure Act (Cap. 21, Laws of Kenya), the primary law of judicial procedure in civil matters, thus stipulates (Section 27(1)):“Subject to such conditions and limitations’ as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction shall be no bar to the exercise of those powers:a.Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order” [emphases supplied]. 80.So, the basic rule on attribution of costs is: costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party; rather, it is for compensating the successful party for the trouble taken in prosecuting or defending the suit. In Justice Kuloba’s words [Judicial Hints on Civil Procedure, at p.94]:“[T]he object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure…Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.” 81.In the instant application, the Respondent shall bear the costs. 82.In the premises, the Application dated 19th January 2026 succeeds in the following terms;1)The Settlement Agreement dated 9thSeptember 2025 and executed on 21stSeptember, 2025 between the Third Party and the Plaintiff is hereby adopted as conclusive settlement of the dispute forming the substratum of this suit.2)This suit is hereby marked as settled.3)The temporary injunctions issued on 13thNovember, 2024 against the Defendant are hereby discharged.4)Costs to the Applicant. DATED, SIGNED AND DELIVERED AT VIRTUALLY ELDORET THIS 9TH DAY OF JUNE 2026.……………………………………..J. CHIGITI (SC)JUDGE