https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3135

Nkugwe Investments Limited v Kihara & 3 others (Sued on their Own Behalf and on Behalf of the Estate of the Late Paul Samuel Kihara) (Environment and Land Case 512 of 2005) [2026] KEELC 3135 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 3135 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 512 of 2005 TW Murigi, J May 14, 2026 Between Nkugwe Investments Limited Plaintiff and John Waiganjo Kihara 1st Defendant Jane Njeri Wanjiru Kihara 2nd Defendant Victor Njuguna Kihara 3rd Defendant Kenneth Waiganjo Kihara 4th Defendant Sued on their Own Behalf and on Behalf of the Estate of the Late Paul Samuel Kihara Ruling 1.This ruling is in respect of two applications. 2.The first application is a Notice of Motion dated 15th July 2025, in which the Defendants seek the following orders:a.Spent.b.The order of injunction issued on 11th May, 2006 and registered against the property L.R No. 7959 (IR No 8549) on 25th June, 2006, be and hereby is discharged;c.The restriction placed on the title L.R No. 7959 (IR No 8549) on 25th June, 2006, in reliance on the orders issued on 11th May, 2006, be and is hereby discharged forthwith;d.The order of specific performance issued on 9th March, 2022 and as reviewed on 22nd May, 2022, abated as result of failure by the Plaintiff/Decree-Holder to deposit the balance of purchase price as ordered by the Honourable Court on 9th March, 2022, and as further reviewed on 22nd May, 2022 and is incapable of being enforced and/or executed against the Defendants/Applicants;e.That order of permanent injunction issued on 9th March, 2022, be and is hereby discharged in its entirety;f.All the orders issued through judgment dated 9th March, 2022 and as reviewed on 22nd May, 2022, abated as a result of failure by the Plaintiff/Decree-Holder to deposit the balance of purchase price as ordered by the Honourable Court on 9th March, 2022 and as further reviewed on 22nd May, 2022 and are incapable of being enforced and/or executed against the Defendants/Applicants;g.Costs of this application be and is hereby provided to the Defendants/Applicants. 3.The application is based on the grounds appearing on its face together with the supporting affidavit of John Waiganjo Kihara, sworn on even date. The Applicants Case 4.The deponent averred that he is one of the administrators of the Estate of the late Paul Samuel Kihara. He averred that his late father subdivided the original parcel, L.R No. 7959, into 0.5-acre plots for sale. Subsequently, the Plaintiff entered into three agreements for the purchase of subdivisions identified as Plots P, Q, and R for a consideration of Kshs 3,600,000/=. 5.He explained that although the Plaintiff paid Kshs 360,000/= as a 10% deposit of the purchase price, Kshs 120,000/= was refunded at his request regarding one parcel, leaving a balance of Kshs 240,000/=. He stated that the Plaintiff subsequently failed to settle the remaining purchase price, which led to the issuance of a completion notice and the eventual rescission of the agreements, with the remaining deposit being forfeited. 6.He explained that despite the rescission, the Plaintiff filed a suit seeking specific performance of the three agreements, including the parcel for which a refund had already been issued. He stated that during the course of the suit, injunctive orders were granted to protect the property. He further stated that the Plaintiff registered a restriction on the entire 10-acre parcel, even though his claim was only for a 1.5-acre portion. 7.He deposed that the suit proceeded ex parte and culminated in the judgment delivered on 9th March 2022. 8.The deponent asserts that the Plaintiff failed to pay the remaining balance, even after the Court reviewed the judgment on 24th May 2022 and granted an extension for compliance. He maintained that the Plaintiff neither paid the outstanding amount nor requested a further extension, rendering the judgment invalid and unenforceable. 9.He argued that allowing the Plaintiff to enforce the judgment without compliance would prejudice the Defendants and deprive them of their proprietary rights, since the partial deposit paid has since been forfeited. 10.Based on the foregoing, the Defendants urged the Court to allow the application as prayed The Plaintiff/Respondent’s Case 11.The Plaintiff filed a Notice of Preliminary Objection and Grounds of Opposition dated 8th November 2025, in opposition to the application. 12.The Plaintiff contends that the application is incompetent and in breach of Order 9, Rules 7, 9, and 10 of the Civil Procedure Rules for having been filed by Githumbi, Gachaga, and Achoki Advocates, who were not properly on record for the Defendants. The Plaintiff urged the Court to set aside the ex parte orders issued on 29th July 2025 in favour of the said firm. 13.The Plaintiff asserts that the Defendants were represented by the firm of Robson Harris & Company Advocates until 18th July 2022, when leave to cease acting was granted. It was contended that service was effected on the said firm only in respect of documents filed by it, and that in all other instances, service was effected directly upon the Defendants. 14.The Plaintiff argued that the Court became functus officio once it delivered judgment and, therefore, lacked the jurisdiction to revisit or set aside its final orders. 15.The Plaintiff pointed out that a similar application to set aside the judgment and for leave to come on record was dismissed on 19th October 2023, rendering the present application res judicata and an abuse of the Court process. 16.It was argued that no basis had been established for reopening the suit, since the matter had progressed to the execution stage and the remaining balance of the purchase price had been deposited in accordance with the judgment. 17.The Plaintiff argued that any prejudice claimed by the Defendants could be remedied through the payment of interest. 18.The second application is a Notice of Motion dated 8th October 2025, in which the Plaintiff seeks the following orders:a.Spentb.That this Honourable Court be pleased to grant an extension of time within which the Plaintiff/Applicant was required to deposit into Court the balance of the purchase price less the costs of this suit for the properties known as L.R Numbers: 7959/10, 7959/18 and 7959/19, Nairobi (Previously known as Plots P, Q and R) as directed in the judgement delivered on 9th March, 2022 and the subsequent Court order issued on 24th May, 2022 in such a manner as to include 1st October, 2025 when the Plaintiff/Applicant paid Kshs. Kshs. 1,721,565/- into this Honourable Court under Invoice Reference No. E4L69ECB into the Judiciary's KCB Bank Account No. 1146036469, being the balance of the Purchase Price less the assessed costs.c.That upon granting Order No. (2) above, the Plaintiff/ Applicant be deemed to have fully complied with prayer No. (a) contained at paragraph 93 of the Judgment delivered on 9th March, 2022 in this suit regarding the payment of the balance of the purchase price less the costs of the suit.d.That this Honourable Court be pleased to issue any other or further orders as may meet the ends of justice in this matter including payment of interest, if any, on the paid balance of the purchase price.e.That the costs of this Application be in the cause. 19.The application is based on the grounds appearing on its face together with the supporting affidavit of Lawrence Mbabu, sworn on even date. The Applicant’s Case 20.The deponent averred that this Court, in its judgment delivered on 9th March 2022, ordered the Plaintiff to pay the remaining balance of the purchase price for the suit properties within 30 days, less the costs of the suit. He deposed that the Court confirmed the total purchase price as Kshs. 3,600,000/=, of which Kshs. 360,000/= had been paid as a deposit, leaving a balance of Kshs. 3,240,000/=. 21.He asserted that subsequent orders required the remaining balance of the purchase price to be deposited in Court. He argued that the Plaintiff was unable to determine the exact amount payable until the costs of the suit were fully taxed in stages, culminating in a total of Kshs. 1,518,435/= as at 26th July 2024. 22.He stated that the Deputy Registrar issued an invoice on 1st October 2025 upon the determination of the costs, following which the Plaintiff deposited Kshs. 1,721,565/= into Court, being the balance of the purchase price less the assessed costs. 23.He acknowledged that the deposit was made out of time due to financial constraints and the inability to determine the exact amount payable before the final taxation of costs. He maintained that the delay was not intentional and expressed the Plaintiffs willingness to pay interest as the Court may direct. The Defendants/Respondents Case 24.The Defendants filed a replying affidavit sworn by the 2nd Defendant, John Waiganjo Kihara, on 17th December 2025, in opposition to the application. The deponent admitted that they were represented by the firm of Robson Harris & Co. Advocates, which ceased acting on 18th July 2022. He argued that the Plaintiff cannot challenge their Advocates' standing, given that they continued serving the pleadings and correspondence on the firm of Githumbi Gachaga & Achoki Advocates. 25.He asserted that the Defendants had exercised their right to legal representation by appointing the said firm and that no prejudice would be caused to the Plaintiff on that account. 26.He averred that the orders sought to be extended were issued on 24th May 2022 and lapsed on 25th June 2022 after the Plaintiff failed to comply with the condition requiring payment of the balance of the purchase price. He further argued that the delay of 3 years and 4 months was inordinate and unexplained. 27.He averred that the judgment delivered on 9th March 2022 granted orders of specific performance regarding L.R Nos. 7959/10, 7959/18 and 7959/19, on condition that the remaining balance of the purchase price was paid within 30 days. He asserted that the Defendants challenged the judgment through an application to set it aside and in the Court of Appeal case COACA/E465/2024, Jayne Njeri Wanjiru Kihara & John Waiganjo Kihara & 2 others v Nkugwe Investment Limited. 28.He asserted that the Plaintiff in the letter dated 10th, 11th March and 18th March 2022, the Amended Plaint and in the Plaintiff’s witness statement, unequivocally expressed readiness and ability to pay the balance of the purchase price. The deponent argued that the subsequent explanation of economic hardship was inconsistent with the Plaintiff’s earlier position and did not justify non-compliance. 29.He contended that the Plaintiff’s failure to pay the balance was deliberate and not due to its inability. He argued that the application was filed long after the orders had lapsed, in reaction to the Defendants’ application dated 14th July 2025. 30.He contended that upon the lapse of the orders on 25th June 2022, the suit properties reverted to the Defendants and the judgment became unenforceable. He asserted that the properties had considerably appreciated in value, with L.R No. 7959/10 now valued at Kshs 75,000,000/=, L.R No. 7959/18 at Kshs 72,000,000/=, and L.R No. 7959/19 at Kshs 80,000,000/=. 31.The deponent argued that permitting the Plaintiff to complete the transaction at the 1996 purchase price would result in unjust enrichment and would deprive the Defendants of their right to sell the properties at the current market value. The Plaintiff/Respondent’s Case 32.The Plaintiff opposed the application through a Notice of Preliminary Objection dated 4th December 2025.The Plaintiff challenged the Defendants’ replying affidavit dated 17th November 2025 on the grounds that it was filed by a firm of advocates not properly on record and should therefore be struck out. 33.The Plaintiff further contended that the firm of Githumbi Gachaga & Achoki Advocates had previously sought leave to come on record in place of Osamba Otieno & Company Advocates through an application dated 7th July 2023, which was dismissed with costs by a ruling delivered on 19th October 2023. In light of the foregoing, the Plaintiff contended that the issue of representation is res judicata. 34.In a further affidavit sworn by its managing director, Lawrence Mbabu, the deponent reiterated that the replying affidavit was irregular and incompetent as it was filed by the firm that was not properly on record. 35.He argued that service on the firm does not amount to recognition of its authority to act for the Defendants. He urged the Court to expunge the replying affidavit from the record. 36.On the merits, the deponent asserted that on 1st October 2025, the Plaintiff deposited a sum of Kshs. 1,721,565/= being the balance of the purchase price less assessed costs, in compliance with the judgment delivered on 9th March 2022 and subsequent orders. He stated that the delay in making payment arose from the taxation process, the ruling on costs having been delivered on 26th July 2024. 37.He contended that the sale agreements had not been rescinded, that evidence of the deposit payment had been presented at trial, and that there was no appeal against the judgment of 9th March 2022. He maintained that the pending appeal relates to the ruling delivered on 19th October 2023. 38.He maintains that the judgment remained valid and enforceable, subject only to the twelve-year limitation period under Section 4(4) of the Limitation of Actions Act. He asserts that the issues of ownership of L.R Nos. 7959/10, 7959/18 and 7959/19 were determined, rendering the Court functus officio. 39.The deponent argued that the Defendants would not be prejudiced if the application for extension of time is allowed as prayed. He maintained that any delay could be compensated by an award of interest. The Response 40.The Defendants filed a further affidavit contending that the Plaintiffs' Preliminary Objection and Grounds of Objection improperly challenge the assertion that the firm of Githumbi Gachaga & Achoki Advocates is properly on record for the Defendants. The deponent argued that the Plaintiff’s claim of having only communicated with the said firm on limited matters is false, and pointed to a settlement offer made by the Plaintiff on 16th October 2025 through the same firm. 41.Both applications were canvassed by way of written submissions. The Defendant’s Submissions 42.The Defendants filed their submissions dated 5th December 2025. 43.On behalf of the Defendants, Counsel submitted that the firm of Githumbi Gachaga & Achoki Advocates was properly on record for the Defendants. Counsel argued that Order 9, Rules 7 and 9 of the Civil Procedure Rules was inapplicable because the Defendants did not have an advocate on record. It was further argued that any procedural defect was curable under Article 159(2)(d) of the Constitution. Counsel invoked Article 50 of the Constitution to assert the right to a counsel of choice, asserting that no prejudice had been demonstrated. 44.Regarding jurisdiction, Counsel submitted that the Court lacks jurisdiction to extend lapsed orders. Counsel relied on NSSF v John Ochieng Opiyo [2006] eKLR, CIC General Insurance Co. Ltd v Phyllis Mbula [2019] eKLR, and David & 2 others v Bakaya (Civil Appeal E200 of 2022) [2024] KEHC 8304 (KLR), to submit that a Court cannot revive or validate orders that have already lapsed. 45.Counsel submitted that the Plaintiff’s application for extension was barred by the doctrine of res judicata, having been previously determined in an earlier application. Counsel cited Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR, citing Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, and on Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1996] eKLR, to submit that the doctrine of res judicata also applies to interlocutory applications. 46.Counsel further submitted that the Court cannot validate acts undertaken in violation of its orders. Counsel relied on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, to submit that actions undertaken outside prescribed timelines are void and cannot be validated by the Court. 47.On the issue of extension of time, Counsel relied on the principles set out in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, and Edward Njane Nganga & another v Damaris Wanjiku Kamau & another [2016] eKLR. Counsel submitted that extension is an equitable and discretionary remedy, dependent on a satisfactory explanation for delay, absence of inordinate delay, and prejudice. In the matter at hand, Counsel argued that the delay was inordinate and unexplained, and therefore disentitled the Plaintiff to relief. To support this point, reliance was placed on Wambui v Ngethe [2023] KEHC 18414 (KLR) and Chepngetich & another v Tonui [2022] KECA 1305 (KLR). 48.Counsel contended that the doctrine of functus officio does not apply because the issues raised pertain to the execution and satisfaction of the decree, which fall within the Court’s jurisdiction. To support this argument, reliance was placed on Adiel Muriithi Philip v Thomas Maingi [2017] KECA 650 (KLR) and Githunguri Dairy Farmers Co-operative Society v Ernie Campbell & Co. Ltd & another [2018] eKLR. 49.In conclusion, Counsel urged that the Court to allow the application as prayed. The Plaintiff’s Submissions 50.The Plaintiff filed its submissions dated 15th December 2025. 51.On behalf of the Plaintiff, Counsel submitted that the Defendants’ replying affidavit Rules is incompetent and offends Order 9, Rules 7, 9 and 10 of the Civil Procedure because it was filed by a firm of advocates not properly on record. Counsel argued that representation after judgment can only be effected with leave of Court or by consent, and in the absence of such compliance, any pleadings filed are a nullity. Counsel relied on Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi [2012] KEHC 515 (KLR), and Julieta Marigu Njagi v Virginia Njoki Mwangi & another [2022] eKLR to submit that pleadings filed by advocates not properly on record are fatally defective and liable to be struck out. 52.Regarding the doctrine of res judicata, the Counsel contended that the issue of representation by Githumbi Gachaga & Achoki Advocates was conclusively determined by the court in its ruling of 19th October 2023, thereby barring its re-litigation. Counsel relied on Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, which outlines the elements of res judicata, and confirmed its application to interlocutory proceedings. 53.Regarding the extension of time, the Plaintiff submitted that the power to enlarge time under Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules is discretionary but must be exercised judiciously. Counsel relied on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others and Susan Ogutu Oloo & 2 others v Doris Odindo Omolo (2019) eKLR, to submit on the principles governing the extension of time, including the requirement for a satisfactory explanation for delay and the absence of indolence. It was argued that the delay in the present case was inordinate and unexplained, and therefore undeserving of the Court’s discretion. 54.Regarding the Defendants’ application, Counsel submitted that it is incompetent, irregular and an abuse of the Court process, as it was filed by the firm of Githumbi Gachaga & Achoki Advocates, which was not properly on record. Counsel urged the Court to strike out the Application in limine on that ground. 55.Counsel further submitted that upon delivery of the final judgment on 9th March, 2022, the Court became functus officio and lacked jurisdiction to entertain the prayers sought. It was contended that the court could neither revisit nor set aside its final orders or the interlocutory orders culminating in the judgment, as such recourse lay only by way of appeal or review, which the Defendants had not pursued. 56.Counsel submitted that the present Application is res judicata on account of the application dated 7th July, 2023, which was dismissed by a ruling delivered on 19th October, 2023. Counsel contended that the instant Application is an impermissible attempt to re-litigate matters already determined, contrary to the principle of finality in litigation. 57.Counsel further submitted that the matter had progressed to the execution stage and that the Plaintiff had substantially complied with the decree by depositing the balance of the purchase price in Court, less the assessed costs. Counsel argued that the appropriate course was the determination of the Plaintiff’s application for an extension of time to enable the final disposal of the matter. 58.Counsel submitted that any prejudice arising from delay could be adequately compensated by an award of interest. Counsel argued that, in the absence of an appeal or review against the judgment or previous orders, and in light of the ruling delivered on 19th October, 2023, the Defendants’ Application should be dismissed with costs. Analysis and Determination 59.Having considered the applications, the responses, and the rival submission, the following issues arise for determination:i.Whether the Court is functus officio;ii.Whether the application to set aside the judgment is barred by the doctrine of res judicata;iii.Whether the Defendants’ application and replying affidavit dated 17th November 2025 are barred under Order 9 Rule 9 of the Civil Procedure Rules;iv.Whether this Court should extend the time to consider the Plaintiff’s compliance, made on 1st October 2025, as having been within the court’s timelines.v.Whether the Defendants are entitled to the discharge of the interlocutory orders and restriction. 60.Regarding the first issue, the Plaintiff argues that this Court became functus officio upon delivering the judgment on 9th March 2022, and is therefore divested of jurisdiction to revisit or vary its final orders. 61.The doctrine of functus officio is well settled. The Black’s Law Dictionary 10th Edition, defines functus officio as follows:“Having performed his or her office of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.” 62.The doctrine of functus officio was stated by the Court of Appeal in the case of Telkom Kenya Limited vs John Ochanda (2014) e KLR as follows;“functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.” 63.The purpose of the doctrine is to ensure finality of litigation. However, that doctrine is not absolute. It admits exceptions where the court is called upon to exercise residual or statutory jurisdiction that arises after judgment. 64.Section 34(1) of the Civil Procedure Act expressly grants jurisdiction to the Court that passed the decree to determine all questions arising between the parties relating to the execution, discharge, or satisfaction of the decree. This provision is a substantive statutory requirement that upholds the court’s post-judgment jurisdiction. 65.In Githunguri Dairy Farmers Co-operative Society v Ernie Campbell & Co. Ltd & another [2018] KECA 721 (KLR), the Court of Appeal confirmed that functus officio applies only to the determination of the substantive dispute. 66.Similarly, in Bellevue Development Company Limited v Vinayak Builders Limited & another [2014] eKLR, the Court held that the doctrine does not extend to proceedings incidental to the final decision, including execution proceedings and related applications. 67.The Defendants’ application does not seek to reopen or relitigate the merits of the judgment delivered on 9th March 2022. Instead, it inquires as to whether the decree has been complied with, whether the conditional orders of specific performance have lapsed, and whether the consequential injunctive and restrictive orders are enforceable. These issues relate to the execution, discharge, or satisfaction of the decree within the meaning of Section 34(1) of the Civil Procedure Act. 68.Similarly, the Plaintiff’s application for extension of time seeks to enlarge the timelines for compliance with its decree. Such relief does not ask the court to revisit its substantive findings, but rather to regulate the manner and timing of compliance with its own orders within the Court’s residual jurisdiction. 69.In light of the foregoing, I find that this Court is not functus officio and retains jurisdiction to determine the applications before it, insofar as they relate to the execution, discharge, and satisfaction of the decree arising from the judgment delivered on 9th March 2022. 70.Regarding the second issue, the Plaintiff argues that the Defendants’ application is barred by the doctrine of res judicata because a similar application, seeking to set aside the judgment and for leave to come on record, was previously filed and dismissed by this Court on 19th October 2023. 71.The doctrine of res judicata is embodied in Section 7 of the Civil Procedure Act, which provides as follows:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 72.The Plaintiffs contend that the Defendants had previously sought leave for the firm of Githumbi Gachaga & Achoki Advocates to come on record and for the setting aside of the ex parte judgment to enable them to defend the suit on its merits, which was ultimately dismissed. 73.The present application is based on the alleged non-compliance by the Plaintiff with the conditions attached to the decree, and seeks, among other things, a determination that the orders of specific performance have lapsed and are no longer enforceable. 74.The issues arising in the present application were neither directly nor substantially in issue in the earlier application, nor were they determined by the ruling of 19th October 2023. The plea of res judicata is therefore inapplicable. 75.Regarding the third issue, the Plaintiff challenged the competence of the Defendants’ application and replying affidavit dated 17th November 2025 on the grounds that they contravene Order 9 Rules 7, 8, and 9 of the Civil Procedure Rules. 76.Order 9 Rule 9 of the Civil Procedure Rules provides that:“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person, as the case may be.” 77.In the present matter, this Court has taken judicial notice of its earlier ruling delivered on 19th October 2023, in which the Defendants had expressly sought leave for the firm of Githumbi Gachaga & Achoki Advocates to come on record, which was declined. In the absence of a subsequent application or consent regularizing their position, the said firm cannot be deemed to be properly on record within the meaning of Order 9 Rule 9 of the Civil Procedure Rules. 78.The purpose of Order 9 Rule 9 is to safeguard advocates' interests, particularly to prevent their removal after a judgment without proper procedures, and to ensure issues concerning fees and professional engagement are addressed. It does not, by itself, act as a jurisdictional obstacle to the Court’s consideration of a matter. 79.This position was aptly articulated in S.K. Tarwadi vs Veronica Muehlemann [2019] eKLR, where the Court observed as follows:“…In my view, the essence of Order 9 Rule 9 of the CPR was to protect advocates from the mischievous clients who will wait until a Judgment is delivered and then sack the advocate and either replace him….” 80.In Tobias M. Wafubwa vs Ben Butali [2017] eKLR, the Court of Appeal clarified that noncompliance with Order 9 Rule 9 of the Civil Procedure Rules does not automatically render subsequent proceedings a nullity, provided that such failure does not undermine the court’s jurisdiction or occasion prejudice:“We would go further to add that, provided that where the failure to comply with the rule 9 did not undermine the jurisdiction of the court, or affect the core of the dispute in question, or prejudice either of the parties in any way as to lead to a miscarriage of justice, then, Article 159 of the Constitution and the overriding principles could be called upon to aid the court to dispense substantive justice through just, efficient and timely disposal of proceedings. A similar approach was invoked in the case of Boniface Kiragu Waweru vs James K. Mulinge [2015] eKLR where in addressing the issue of non-compliance with order 9 rule 9 this Court observed thus;“All in all we are not persuaded that non-compliance with Order III rule 9A of the Civil Procedure Rules was meant to make the following proceedings incompetent or a nullity, efficacious as the provision was meant to be. Indeed, at all times, the set procedures ought to be followed or complied with. However, we find that non-compliance, in the present matter, did not go to the root of the proceedings. The non-compliance, we may say, was procedural and not fundamental. It did not cause prejudice to the appellant at all…” 81.Applying those principles to the present case, the Court is not persuaded that the procedural defect warrants the nullification of the impugned application and replying affidavit. There is no demonstrable prejudice caused to the Plaintiff, nor is it shown that the irregularity has compromised the integrity of the proceedings. 82.Although the failure to comply with Order 9 Rule 9 is acknowledged and remains a procedural lapse that ought not to be condoned, it does not, in the circumstances of this case, justify the striking out of the Defendants’ pleadings. The Court therefore invokes Article 159(2)(d) of the Constitution and the overriding objective to admit the application for determination on its merits. 83.Regarding the fourth issue, it is not in dispute that judgment in this matter was delivered on 9th March 2022 in favour of the Plaintiff, granting, inter alia, orders of specific performance conditional upon payment of the balance of the purchase price within thirty days. 84.Following the Plaintiff's application, the Court on 24th May 2022 reviewed its orders and directed that the balance of the purchase price to be deposited in court, while extending the period for compliance by a further thirty days. The obligation to pay the remaining purchase price thus remained a condition precedent to the enjoyment and enforcement of the decree. 85.From the wording of the judgment, the ascertainment of the exact balance payable was contingent upon the conclusion of the taxation process. The record shows that taxation was initially undertaken, culminating in a ruling delivered on 3rd August 2022, assessing costs at Kshs. 1,425,215/=. However, the Plaintiff did not remit the balance of the purchase price upon that determination. Instead, the Plaintiff subsequently filed a further Bill of Costs dated 23rd April 2024, relating to the Defendants’ application dated 7th July 2023, which gave rise to a further taxation ruling delivered on 26th July 2024. Thereafter, the Plaintiff deposited the sum of Kshs. 1,721,565 on 1st October 2025, being the computed balance less the taxed costs. 86.The issue for determination is whether this Court may, in the exercise of its discretion, enlarge time so as to deem that payment as having been made within the timelines set by the Court. The Defendants contended that the orders lapsed upon expiry of the prescribed period and are incapable of revival. 87.Section 95 of the Civil Procedure Act provides that:Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. 88.Similarly, Order 50 Rule 6 of the Civil Procedure Rules provides:Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise. 89.The distinction between extension and enlargement of time is significant. Enlargement of time, unlike extension, is not limited by the duration of the original timeline and can be granted even after the period has expired. (National Social Security Fund v John Ochieng Opiyo [2006] KEHC 3150 (KLR)). 90.The exercise of this discretion, however, is not automatic and is guided by settled principles. In Patrick Maina Mwangi v Waweru Peter [2015] KEHC 1099 (KLR), the court opined that when exercising the discretionary power to grant or refuse an enlargement of time, the Court must be guided by some factors, including:i.Whether there has been indolence on the part of the applicant or default which has not been explained;ii.Whether the applicant is guilty of abuse of court process.iii.Whether the enlargement will prejudice the defendant.iv.Whether the denial of further period to comply will occasion prejudice to the applicant given the circumstances of the case.v.Whether the enlargement is necessary for the effectual complete adjudication of the issues in controversy; andvi.Whether it is just to enlarge time in the circumstances of the case. 91.The delay in the present case is both prolonged and inadequately explained. While the Plaintiff attributes the delay to the pendency of taxation, the record shows that costs were determined as early as 3rd August 2022. The subsequent Bill of Costs filed in April 2024 related to a separate interlocutory application and did not prevent compliance with the decree. The Plaintiff neither tendered payment based on the then available taxed costs nor sought further directions or an extension within a reasonable time. The explanation offered, therefore, does not satisfactorily account for the delay. 92.Notwithstanding the foregoing, the decree issued herein was for specific performance, subject to payment. Such a decree does not automatically lapse upon non-compliance but remains under the Court's supervisory jurisdiction to determine whether the condition has been satisfied or should be deemed so. 93.The Defendants have demonstrated that the suit properties have significantly appreciated in value during the period of non-compliance. While such appreciation does not, in itself, defeat a decree for specific performance, it is a relevant factor in assessing whether the Plaintiff’s delay has occasioned prejudice and whether equitable relief should be granted. 94.Conversely, refusing to enlarge time would deny the Plaintiff the opportunity to enforce a decree already issued in its favour, notwithstanding subsequent compliance. The Court must therefore balance the Plaintiff’s default against the need to uphold substantive rights crystallized in the judgment. 95.In the premises, this Court finds that the Plaintiff was indolent and has not provided a satisfactory explanation for the delay in making payment. Nevertheless, it is not in dispute that the payment was ultimately made, and the decree herein remains valid and subsisting, having been neither reviewed nor appealed. 96.In the exercise of its discretion, the Court is persuaded that this is an appropriate case for the enlargement of time, with an award of interest in favour of the Defendants. Accordingly, time is enlarged, and the Plaintiff’s payment made on 1st October 2025 is deemed to have been made within the timelines set by the Court. 97.The remaining issue to be addressed is the appropriate interest payable for the delayed settlement of the outstanding balance of the purchase price. 98.Section 26 of the Civil Procedure Act provides as follows:(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.(2)Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum. 99.The Court of Appeal in Kipchumba v BOG Tambach Teachers Training College [2023] KECA 802 (KLR) confirmed that the discretion to award and fix interest is wide but must be exercised judiciously. Similarly, in Ajay Indravadan Shah v Guilders International Bank Ltd [2002] 1 EA 269, the Court emphasized that:“Under section 26 (1) of the Civil Procedure Act, the Court has discretion to award and fix the rate of interest to cover three stages, namely:1.The period before the suit;2.The period from the date the suit is filed to the date when the Court gives its judgment; and3.From the date of judgment to the date of payment of the sum adjudged due or such earlier date as the Court may, in its discretion, fix.” 100.In Abok James Odera T/A as A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR (Civil Appeal No. 161 of 1999), the Court of Appeal cautioned that the discretion under Section 26 is not to be exercised arbitrarily, but must be supported by cogent reasons: 101.This court takes into consideration the Practice Directions to standardize practice and procedures in the High Court, issued by the Chief Justice on 11th January 2022. At paragraph 38 on review of court Interest Rates, it is provided that:“Where a decree is silent with respect to the payment of interest on such aggregate the court shall be deemed to have ordered interest at 14% per annum or as the Chief Justice will direct from time to time” 102.In the present case, the delay in payment was inordinate and unjustified. The Plaintiff retained the benefit of the purchase sum for a considerable period to the detriment of the Defendant. In those circumstances, an award of interest is not only compensatory but also necessary to cure the prejudice occasioned by the delay. 103.Accordingly, interest shall accrue on the outstanding balance of the purchase price at Court rates from the date the payment fell due, until the date of the delivery of this ruling. 104.The Defendants seek the discharge of the injunctive orders issued on 11th May 2006 and the consequent restriction registered against L.R No. 7959, arguing that they were interlocutory in nature and have since expired upon delivery of judgment. 105.Interlocutory injunctions are provisional remedies granted to preserve the subject matter of a suit pending its determination. Upon delivery of final judgment, such orders are overtaken by events and cannot subsist independently unless expressly preserved. In the present case, the interlocutory orders issued on 11th May 2006 were not preserved in the judgment of 9th March 2022 and must therefore be deemed to have lapsed upon determination of the suit. 106.The restriction registered against the suit property was expressly based on the interlocutory orders. Once the interlocutory orders lapsed, the restriction ceased to have legal justification unless otherwise sustained under the applicable statutory framework. 107.The restriction was not imposed as a freestanding administrative measure by the Registrar, but as a consequence of court orders issued for preservation of the suit property pending determination of the dispute. Its duration was therefore implicitly tied to that purpose. 108.Section 78 of the Land Registration Act vests in both the Registrar and the Court the power to order the removal or variation of a restriction upon application by an interested party. Where the underlying purpose of the restriction has been spent, and particularly where its continued existence operates to impede the enforcement of a court decree, the Court is enjoined to intervene. 109.In the present case, the continued existence of the restriction is both unnecessary and counterproductive. The suit has been conclusively resolved, and this Court has established that the decree for specific performance remains valid and enforceable. The transfer of the suit properties to the Plaintiff, as ordered by the Court, cannot be executed while the restriction persists. 110.In the premises, this Court finds that the interlocutory orders issued on 11th May 2006 are spent and incapable of further operation. Consequently, the restriction registered against L.R No. 7959 pursuant to those orders is without legal basis and ought to be lifted. The Court accordingly orders that the said restriction be removed to facilitate compliance with the decree and completion of the transfer in favour of the Plaintiff. 111.In the result, and for the foregoing reasons, this Court makes the following orders:i.The Defendants’ Application dated 15th July 2025 is partially allowed, on the following terms:i.The restriction registered against L.R No. 7959 pursuant to the interlocutory orders issued in these proceedings is hereby lifted forthwith, and the Land Registrar shall give effect to this order without delay.ii.The interlocutory injunctive orders issued on 11th May 2006 are hereby declared spent.ii.The Plaintiff’s Notice of Motion dated 8th October 2025 is allowed on the following terms:i.Time for compliance with the payment obligations under the judgment delivered on 9th March 2022 and the subsequent orders issued on 24th May 2022 is hereby enlarged, and the sum of Kshs. 1,721,565/= paid by the Plaintiff on 1st October 2025 is deemed to have been paid within the prescribed timelines.ii.The Plaintiff shall pay interest on the said sum at the rate of 14% from 26th July 2024 until the date of delivery of this ruling, and such interest shall be settled within thirty days of this ruling.iii.Each party shall bear its own costs of the applications. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 14TH DAY OF MAY 2026.……………………………………HON. T. MURIGIJUDGEIn the presence of:Grace Ndinda for the PlaintiffMs Kasyoka holding brief for Achoki for the DefendantAhmed – Court assistant