The Application
1. The Defendants/Applicants filed a Notice of Motion dated 2 nd February 2026 under Certificate of Urgency. The application is expressed to be anchored on Section 1A, 1B and 3A of the Civil Procedure Act, Article 48 of the Constitution of Kenya, 2010, and Order 51 of the Civil Procedure Rules. They seek ORDERS that:
a. …Spent
b. …Spent
c. THAT this Honorable Court be Pleased to Order that the Refund of the Purchase price for the purchase of LR NO. BUKIRA/ BUHIRIMONONO/442 be deposited in the Court's Account as was Agreed upon in the Full Settlement that was reached during the Mediation process that was authorized by this Hon Court.
d. THAT in the alternative to prayer (2) above, this Hon Court be pleased to order counsel for the Plaintiffs/Applicants to provide his Bank Account details so that that the Refund of the Purchase price for the purchase of LR NO. BUKIRA/ BUHIRIMONONO/442 be deposited in his Account as was Agreed upon in the Full Settlement that was reached during the Mediation process that was authorized by this Hon Court.
e. THAT cost of this Application be provided for.
2. The application is supported by the grounds contained on its face as well as the grounds contained in the affidavit deponed by the Florence Emense Boke, the 1 st Defendant/Applicant. The Defendants/ Applicants maintain that this court directed that parties attempt an out of court mediation settlement of their dispute. Pursuant to these directions, the parties engaged in mediation and reached settlement. In that settlement, the Defendants/ Applicants were to refund the entire purchase price on or before 31 st December 2025.
3. The Defendants /Applicants stated that the had obtained the entire purchase price as at August 2025 but was prevented from making the refund on account of the actions of the Plaintiff/Respondents and their counsel, whom they alleged, refused to take the refund as agreed in their mediation settlement agreement. The 1 st Defendant/respond annexed to her affidavit a letter written by the area Chief and dated 17 th December 2025 and whose contents were to the effect that the 3 rd Plaintiff/Respondent had refused to attend the chief’s meeting and receive the refund from the Defendants/Respondents.
4. Also annexed to the affidavit is a letter a letter written by the Defendants/Applicants’ counsel dated 19 th January 2026. The gist of this letter is that the Defendants/were ready with the refund since August 2025 but the Plaintiff/Respondents had refused to accept the same. Counsel also maintained that he had he had given his clients the Plaintiffs’/Respondents’ counsels number and his clients called the said counsel in December 2025 asking him to receive the refund which he refused to accept. He implored upon counsel to accept to refund in his capacity as the counsel for the Plaintiffs/Respondents.
5. The Defendants/Respondents stated that the Plaintiff/Respondents invaded the suit property on 21 st January 2025 and destroyed all the boundaries thereon, which actions led to breach of peace and created animosity between the parties. They prayed that their application be allowed.
The Plaintiff/Respondent’s replying affidavit
6. The 3 rd Plaintiff/Respondent filed a Replying Affidavit dated 6 th February 2026. He maintained that the Plaintiff/Respondents were no longer interested in the refund since the Defendants/Applicants had breached the mediation settlement entered between the parties and adopted as an order of the court. He maintained that, the refund of the purchase price (of KShs 240,000/= as noted from the mediation agreement) was to be paid by 31 st December 2025 as per the mediation settlement agreement, but the same did not happen. The 3 rd Defendants/Respondents also stated that the payment or refund was to be made through their advocate.
7. It was the 3 rd Plaintiff/Respondent’s further assertion that the Defendants/ Applicant sought the services of the area Chief and the police to intimidate them after failing to honor the mediation settlement agreement within the agreed time frame. He also stated that the Defendant/Applicant’s counsel wrote a letter to their advocate after the lapse of the repayment period and that their advocate advised them not to receive the money since time had lapsed.
8. Moreover, the 3 rd Plaintiff/Respondent deponed that they were in the process of obtaining a title deed to the suit property and that they had lived on the said land for many years, built a home and cultivated a portion thereof. He maintained that, the Defendants/Respondents, having failed to refund the purchase price within the agreed upon time, cannot seek to have the same paid after the breach of the mediation settlement agreement since the court is now functus officio. The rationale for this assertion according to the 3 rd Plaintiff/Respondent is that the mediation settlement agreement entered between the parties has never been reviewed or set aside. As such, the same cannot be challenged and the prayers sought in the Defendants’/Applicants’ application are but a mere academic exercise. He deponed that Defendants’/Applicants’ application is akin to amending the mediation settlement agreement as well as the decree of the court.
9. Annexed to the 3 rd Plaintiff’s /Respondents’ was a letter dated 20 th January 2026, which was a response to the Plaintiffs/Applicants advocates letter dated 19 th January 2026. In this letter, counsel for the Plaintiffs/Respondents stated that his clients could not receive the refund since the time for effecting the refund had lapsed. He also stated that his office was closed on 19 th December 2025 and opened on 12 th January 2026. Counsel also added that the Chief’s letter attached to the Defendants/Applicants’ application was not in conformity with the court’s order hence his clients were not bound to heed the chief’s request.
Submissions
10. The application was canvassed via written submissions. The Defendants/Applicants did not file submissions. The Plaintiffs/Respondents filed their submissions dated 6 th July 2026. They identified the following three issues for determinations: whether the court is functus officio ; whether the Applicants have established sufficient grounds for grant of stay and injunctive relief; and whether the Applicants are entitled to equitable relief after breaching the court-adopted settlement.
11. On whether the court is functus officio , the Plaintiffs/Respondents submitted in the affirmative. They begun their submissions by highlighting the legal foundation of mediation as an alternative dispute resolution mechanism, being article 159 (2) (c) of the Constitution of Kenya and Section 59C and 59D of the Civil Procedure Act. More importantly, the Plaintiffs/Respondents submitted that once a mediation settlement agreement is adopted by the court, it functions as a final judgment and decree of the court and the same should be enforced as such.
12. The Plaintiff/Respondents submitted that the parties herein entered into a mediation settlement agreement wherein the purchase price of the suit property was to be refunded on or before 31 st December 2025. They maintained that the Defendant Applicants did not honour the terms of the agreement as agreed by the parties since there was no refund made to the Plaintiffs/Respondents or their advocate.
13. Granted the above set of circumstances, the Plaintiffs/ Respondents submitted, the Defendants/Applicants are seeking fresh directions requiring the court to authorize payment of the purchase price after the expiry of the timelines set by the parties for doing so. The orders sought, the Plaintiffs/Respondents asserted, are meant to introduce new terms into the already concluded mediation settlement agreement contrary to the law. They also submitted that courts should not rewrite contracts or negotiated agreements freely entered by the parties. Reliance was placed on Flora Wasike v Destimo Wamboko [1988] eKLR to submit that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify the setting aside of a contract or if certain condition remain to be fulfilled and the same have no been carried out. The Plaintiffs/Respondents submitted that such grounds had neither been pleaded nor proved.
14. On the basis of the foregoing, the Plaintiffs/Respondents submitted that the court is functus officio since it discharged its mandate once it adopted the parties’ mediation settlement. As such, granting the orders sought by the Defendants/Respondent would amount to altering the terms of the aforesaid agreement by extending time and authorizing an alternative mode of payment that was never contemplated by the parties. Reliance was placed on Kabansora Millers Limited v Nyangena (Civil Appeal E665 of 2022 [2025] eKLR and the Supreme Court decision in Raila Odinga & 2 others v Independent Electoral and Boundaries Commission & 3 others [2013] eKLR to highlight the importance of the functus officio doctrine and the circumstances that render courts functus officio .
15. As to whether the Defendants/Applicants had met the conditions for s grant of stay and injunction, the Plaintiffs/Respondents submitted that the grant of the said orders had not been qualified. They relied on the case of Giella v Cassman Brown [1973] EA 58 to highlight the conditions that ought to be proved by an Applicant for grant of an injunction. Accordingly, they submitted that an Applicant should demonstrate that they have a prima facie case with high chances of success; demonstrate that they will suffer irreparable loss that cannot be compensated by way of damages; and if the court is in doubt as to the first two conditions, decide the matter on a balance of convenience.
16. Following the above test, the Plaintiffs/Respondents submitted that none of the aforesaid conditions had been met. The Defendants/ Applicants had breached the mediation settlement agreement and a party is such a position cannot be said to have demonstrate a prima facie case. They also stated that loss suffered by the Defendants/Applicants can be compensated by way of damages. Lastly, they submitted that the balance of convenience tilted towards preserving the decree issued by this court.
17. On the question of stay, the Plaintiffs/Respondents submitted that the Defendant/Applicants had not demonstrated sufficient cause as mandated by Order 42 Rule 6 of the Civil Procedure Rules. They added that there was neither a pending appeal nor an executable order capable of being stayed. The Plaintiffs/ Respondents equally submitted that the application merely sought to suspend the legal consequences of the Defendants/Applicants own breach and maintained that courts do not issue injunctions to protect parties from the consequences of their own breach.
18. Lastly, on the issue of whether the Defendants/Applicants deserve an equitable relief, the Plaintiffs/ Respondents submitted that equity aids the vigilant and not the indolent. They asserted that the Defendant/Respondents never complied with the terms of payment or refund stipulated in mediation settlement agreement and adopted as an order of the court. They also submitted that the explanation given by the Defendant/Applicants for their non-compliance did not hold water for the following reasons: Foremost, the mediation settlement agreement expressly provided that the payment or refund was to be effected through the Plaintiffs’/Respondents’ advocate. Secondly, the Defendants/Applicants only sought the court’s intervention after the lapse of the agreed upon refund period; nothing prevented them from seeking the courts intervention before the refund deadline. To this end, the Plaintiffs/Respondents submitted that the Defendants/Applicants’ application reeked of negligence.
19. The Plaintiffs/Respondents referred the court to sections 1A AND 1B of the Civil Procedure Act which obligates parties to help courts in the expeditious, efficient and just determination of disputes. Reliance was also placed on Shah v Mbogoh [1967] EA 116 to support the submission that the court’s discretion should not be used to assist a party who deliberately delays or obstructs the course of justice.
Issues, Analysis and Determination
20. After careful consideration of the application, the response thereto as well as the submissions filed by the Plaintiffs/ Respondents, the court has set out the following issues for determination:
a. Whether the court is functus officio
b. If the answer to issue a) above, whether the Defendant/Applicants should be allowed to refund the Plaintiff/Respondents the purchase price of the suit property despite failing to pay the refund within the agreed upon deadline;
c. Who should bear the costs of the application
21. Whereas the Plaintiffs/Respondents identified an issue concerning stay and injunction, the same are already spent. This is because the Defendant/Applicant sought the said prayers pending the hearing and determination of this application. Accordingly, the court will not address the said issues in its analysis.
22. The next preliminary point or issue I address is that failure to file submissions did not, and does not ordinarily, prejudice a party although it is advisable for one to always urge their case, unless it is straightforward. Submissions are only arguments meant to highlight points considered important by the party submitting, for the court to look at from their perspective. They do not constitute facts or evidence or pleadings for the party hence they can as well be ignored by the court if they are irrelevant, even if filed or urged orally. In Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR) (9 May 2014) (Judgment) , the Court of Appeal held:
“Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented .”
23. This means that this court will consider the merits of the instant application, absence of their submissions notwithstanding. I now begin with the analysis of the issues in sequence.
a) Whether the court is functus officio
24. The functus officio doctrine was aptly considered in Kabansora Millers Ltd v Nyangena (Civil Appeal E665 of 2022) [2025] KEHC 4754 (KLR) (Civ) (27 March 2025) (Ruling) where the court, after analyzing several precedents determined that:
‘‘9. The doctrine of functus officio dictates that once a court has rendered its final decision, it ceases to have jurisdiction over the matter, save for specific exceptions such as review or correction of clerical or arithmetical errors.
10. In expounding on the functus officio doctrine, the Supreme Court in Odinga v Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling) where the Supreme Court held that once a court delivers its judgment, it becomes functus officio and cannot review or reopen the matter unless provided under specific provisions of the law to ensure legal certainty and justice.
11. In Telkom Kenya Limited v Ochanda (Suing on his own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2015] KESC 18 (KLR), and Kenya Airports Authority v Mitu- Bell Welfare Society & 2 others [2016] eKLR , the Court of Appeal reaffirmed the doctrine of functus officio, holding that once a court has fully and finally adjudicated upon a matter, it cannot reopen or reconsider the case, except under defined circumstances such as through a successful application for review.
12. The functus officio principle serves to ensure finality in judicial decisions and prohibits courts from revisiting matters already conclusively determined, except where expressly permitted by law. It promotes judicial efficiency, certainty, and the integrity of the judicial process.
13. In the present case, the Respondent has invoked Order 45, which provides for review under specific grounds, including the discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason. In light of this, the court is not necessarily functus officio, and may consider the application on its merits within the confines of the review jurisdiction.
25. The Plaintiffs/Respondents herein submitted that the court is functus officio because the mediation settlement agreement adopted as an order of the court operates as a judgment and decree of the court. As such, the court does not have the power to alter its terms, more so where there is no review application against the same. The Defendant/Applicants sought this court’s intervention in enforcing the mediation settlement agreement entered between the parties and adopted as an order of this court. Does this prayer render the court functus officio ?
26. In answering this question, it is imperative the appreciate the law, meaning and scope of the functus officio doctrine. Section 34 of the Civil Procedure Act empowers the court issuing a decree to determine issues between the parties in suit with regard to execution, discharge or satisfaction of the decree in question. The said section provides that:
34. Questions to be determined by court executing decree
(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree. and not by a separate suit.
27. The issue in this matter is that there was a mediation agreement one of whose immediate terms was to be honoured within a certain time. The Term was not. Thus, was the refund to be made in execution of the decree or not? In my view, it was. Further to the above, several decisions point to a stark difference between a party seeking to re-open litigation and a party seeking to enforce a decree of the court. In Merisia & 2 others v Kalungokor (Environment & Land Case 139 of 2013) [2025] KEELC 564 (KLR) (13 February 2025) (Ruling) , this court determined that:
‘‘48. From the above authorities by which I am bound it is clear that while functus officio prevents a court from revisiting the matter on a merit-based re-engagement once final judgment has been entered and a decree issued, it does not bar the Court from carrying out post-judgment procedures in the same matter. In the instant matter, the Court was only invited to consider a post-judgment step that ought to have been carried out if the parties herein were genuine in the implementation of the judgment of the Court. Thus, the court is not functus officio. If ever it was, then how is it to be satisfied that its decree has been implemented when one or more of the parties keep complaining that that has not been done? I dismiss that limb of argument.’’ (Emphasis added )
28. In Nderitu & 55 others v Telkom Kenya Limited & another (Civil Suit 165 of 2006) [2024] KEHC 2297 (KLR) (1 March 2024) (Ruling), the High Court (Nyaga, J) determined as follows:
‘‘61 . The Applicants are seeking to enforce the Judgment of this court delivered on 13 th July, 2011. It is thus clear that they are not seeking a re-engagement of the Court with its earlier decision. A court does not become functus officio merely because it has delivered a final decision in civil proceedings. The court retains its power to undertake several actions including but not limited to stay, review, execution proceedings and such other acts and steps towards the closure of the file. In Leisure Lodge Ltd vs Japhet Asige and another (2018) EKLR the court said and held:
“On the question that this court is functus officio, I do find that a trial court retains the duty and jurisdiction to undertake and handle all incidental proceedings even after a final judgment is delivered provided such proceedings do not amount to re-trying the cause but geared towards bringing the litigation to an end. That is the reason, the court must undertake settlement of a decree, if parties cannot agree, handle applications for stay, review, setting aside and even execution proceeding including applications under Section 94 of the Act. (Emphasis added)
29. Similarly, in Okoiti v National Transport and Safety Authority & another (Petition 97 of 2018) [2021] KEHC 12642 (KLR) (Civ) (25 February 2021) (Ruling), the court determine as hereunder on the doctrine of functus officio:
‘‘[19] This principle has been aptly summarized further in Jersey Evening Post Limited v. A1 Thani [2002] JLR 542 at 550 :
‘‘ A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected . The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available”.
27. The Court of Appeal (in Telkom Kenya Limited v John Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR ) went on to express itself as follows:
“ The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued . There do therefore exist certain exceptions and these have been captured thus in JERSEY EVENING POST LTD VS AI THANI [2002] JLR 542 at 550, also cited and applied by the Supreme Court;
‘A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.’’
28. From the foregoing, it is clear that a court becomes functus officio once it has performed all its duties in a case, usually by rendering a final decision. As per the decision of the Court of Appeal in Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR , the doctrine does not allow “ a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued.”
30. Nevertheless, the Petitioner also seek that the 1 st Respondent and its Chief Executive Officer be found guilty and punished for contempt. So long as the Petitioner is seeking to enforce the judgement and the decree of this Court, he is entitled to approach the Court for the necessary orders . It does not require citation of any decided case to hold that a court of law has jurisdiction over a matter until the decree is fully satisfied. A decree-holder is free to engage the court for assistance in the execution of the decree. One of the methods for executing a decree is through the commencement of contempt of court proceedings. The Petitioner’s application can therefore not be declared functus officio in so far as it seeks to enforce the judgement and the decree of the Court . (Emphasis added)
30. Flowing from the above stated, I am of the view that a court does not merely become functus officio merely because it has rendered its final judgment and issued a decree. There exist special circumstances where is a court is allowed to determined some issues between the parties, post-judgment, so as to facilitate the finality of the matter. One such instance is where a party is seeking to enforce or the enforcement of the decree of the court as is in the instant case. Accordingly, the court finds that it is not functus officio since the issue at hand relates to the enforcement of a decree of this court, which was sought.
31. From the record, it is clear that this court adopted he mediation agreement as the decree of this court on 29 th October 2025. This was two months after the parties entered into the mediation agreement. Upon adoption, the terms of the mediation agreement, and the adjustment thereto by the consent of the parties, became the decree of the court forthwith.
32. There is a nuance relating to the above issue and which may confuse a person not keen, because of the following. The applicants argue that the parties agreed for a time for the refund/ payment, which is true. The issue applicant brought before the court is for extension of the time and not the variation of the mediation agreement. The terms of the mediation agreement remain. It is noteworthy that if the respondents argue that for the court to vary the time would mean the variation or review of the mediation agreement hence interfering with the same, it is quite clear that initially the issue of fixation of the consequence of failure to adhere to the 31 st December, 2025 date was not in the mediation agreement. This was a creature of all the parties when the mediation agreement was adopted, and was introduced by the Respondents specifically. The default issue, while agreed on, was not, in my humble view, cast on stone if some intervening factors would come about. Thus, the only issue now at hand is that the time which was agreed upon, and which was part of the agreement, elapsed not out of their mistake. In my view, the matter does not seek to re-open the case as or alter the terms of the agreement between the parties as submitted by the Plaintiffs/ Respondents. Neither, is it a review of the entire agreement but a quest to honour or enforce part of the decree. This is an issue which Section 3A of the Civil Procedure Act, and Article 159(2)(d) of the Constitution, and equity (one of the national values embraced by the Constitution (see Article 10(2)(b) step in to cure in order to bring justice to parties.
b) Whether the Defendant/Applicants should be allowed to refund the Plaintiff/Respondents the purchase price of the suit property despite failing to pay it within the agreed upon deadline.
33. The existence of a mediation settlement agreement between the parties is not disputed. Its terms are not contested either. Through it, the Defendants/Applicants were expected to pay a specific sum in relation to mediation settlement reached as against the purchase of the suit property on or before 31 st December 2025. This did not happen. It is not disputed. The Defendants/ Applicants blamed the Plaintiffs/ Applicants and as well as the opposing counsel for failing to receive the said refund. They stated that they obtained the funds as early as August 2025 but the opposing side declined to receive the money. Sometimes in November 2025, the Defendants/Applicants stated that they approached the Area Chief with the intention of having the Plaintiffs/Respondents receive the money but the latter refused the honour the chief’s summons hence receive the money. This allegation is supported by the area Chiefs’ letter dated 17 th November 2025.
34. In their response, the Plaintiffs/ Respondents maintained that they are not willing to receive the funds since the same were never availed within the agreed upon timeframe. Counsel for the Plaintiffs/Respondents stated that his office was closed from 19 th December 2025 and opened on 12 th January 2026, by which time the deadline for effecting the refund had already lapsed. Counsel also stated that he advised his clients not to honour the Chief’s summons since the same was not part of the mediation settlement agreement or the decree of the court. The Plaintiffs/Respondents blamed the Defendants/Applicants for failing to honour the decree of the court and maintained that they are processing title to the suit property.
35. The court is called upon to determine whether the decree of the court should be enforced, considering that the time for making a refund to the Plaintiffs/Respondents lapsed. In my view, considering the totality of the facts herein, the Defendants/Applicants made substantial efforts to have the refund or payment effected. However, according to the applicants, the Plaintiffs/Respondents made it impossible for the refund to be made. Here is the explanation for the holding. The Plaintiffs/Respondents counsel admitted having advised his clients not to attend the Chief’s meeting, whose purpose was to effect the refund. In his response to the Defendants/Applicant’s counsel, the Plaintiffs’/Respondents’ counsel also stated that his office was closed from 19 th December 2024 to 12 th January 2025. It is worth noting that the Respondents were represented by counsel. The sums payable under the mediation agreement ought to have been paid through their offices since they were the legally recognized agents of the Respondents. The closure of their offices from 19 th December, 2025 to 12 th January 2026, cut out by their own or their client’s choice, the remaining period of almost two weeks before the lapse of the time agreed on. Further, they did not communicate to the applicants and even the Court in writing or even verbally as to who would receive the money due during that time of closure of offices befo
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1. The Defendants/Applicants filed a Notice of Motion dated 2 nd February 2026 under Certificate of Urgency. The application is expressed to be anchored on Section 1A, 1B and 3A of the Civil Procedure Act, Article 48 of the Constitution of Kenya, 2010, and Order 51 of the Civil Procedure Rules. They seek ORDERS that:
a. …Spent
b. …Spent
c. THAT this Honorable Court be Pleased to Order that the Refund of the Purchase price for the purchase of LR NO. BUKIRA/ BUHIRIMONONO/442 be deposited in the Court's Account as was Agreed upon in the Full Settlement that was reached during the Mediation process that was authorized by this Hon Court.
d. THAT in the alternative to prayer (2) above, this Hon Court be pleased to order counsel for the Plaintiffs/Applicants to provide his Bank Account details so that that the Refund of the Purchase price for the purchase of LR NO. BUKIRA/ BUHIRIMONONO/442 be deposited in his Account as was Agreed upon in the Full Settlement that was reached during the Mediation process that was authorized by this Hon Court.
e. THAT cost of this Application be provided for.
2. The application is supported by the grounds contained on its face as well as the grounds contained in the affidavit deponed by the Florence Emense Boke, the 1 st Defendant/Applicant. The Defendants/ Applicants maintain that this court directed that parties attempt an out of court mediation settlement of their dispute. Pursuant to these directions, the parties engaged in mediation and reached settlement. In that settlement, the Defendants/ Applicants were to refund the entire purchase price on or before 31 st December 2025.
3. The Defendants /Applicants stated that the had obtained the entire purchase price as at August 2025 but was prevented from making the refund on account of the actions of the Plaintiff/Respondents and their counsel, whom they alleged, refused to take the refund as agreed in their mediation settlement agreement. The 1 st Defendant/respond annexed to her affidavit a letter written by the area Chief and dated 17 th December 2025 and whose contents were to the effect that the 3 rd Plaintiff/Respondent had refused to attend the chief’s meeting and receive the refund from the Defendants/Respondents.
4. Also annexed to the affidavit is a letter a letter written by the Defendants/Applicants’ counsel dated 19 th January 2026. The gist of this letter is that the Defendants/were ready with the refund since August 2025 but the Plaintiff/Respondents had refused to accept the same. Counsel also maintained that he had he had given his clients the Plaintiffs’/Respondents’ counsels number and his clients called the said counsel in December 2025 asking him to receive the refund which he refused to accept. He implored upon counsel to accept to refund in his capacity as the counsel for the Plaintiffs/Respondents.
5. The Defendants/Respondents stated that the Plaintiff/Respondents invaded the suit property on 21 st January 2025 and destroyed all the boundaries thereon, which actions led to breach of peace and created animosity between the parties. They prayed that their application be allowed.
The Plaintiff/Respondent’s replying affidavit
6. The 3 rd Plaintiff/Respondent filed a Replying Affidavit dated 6 th February 2026. He maintained that the Plaintiff/Respondents were no longer interested in the refund since the Defendants/Applicants had breached the mediation settlement entered between the parties and adopted as an order of the court. He maintained that, the refund of the purchase price (of KShs 240,000/= as noted from the mediation agreement) was to be paid by 31 st December 2025 as per the mediation settlement agreement, but the same did not happen. The 3 rd Defendants/Respondents also stated that the payment or refund was to be made through their advocate.
7. It was the 3 rd Plaintiff/Respondent’s further assertion that the Defendants/ Applicant sought the services of the area Chief and the police to intimidate them after failing to honor the mediation settlement agreement within the agreed time frame. He also stated that the Defendant/Applicant’s counsel wrote a letter to their advocate after the lapse of the repayment period and that their advocate advised them not to receive the money since time had lapsed.
8. Moreover, the 3 rd Plaintiff/Respondent deponed that they were in the process of obtaining a title deed to the suit property and that they had lived on the said land for many years, built a home and cultivated a portion thereof. He maintained that, the Defendants/Respondents, having failed to refund the purchase price within the agreed upon time, cannot seek to have the same paid after the breach of the mediation settlement agreement since the court is now functus officio. The rationale for this assertion according to the 3 rd Plaintiff/Respondent is that the mediation settlement agreement entered between the parties has never been reviewed or set aside. As such, the same cannot be challenged and the prayers sought in the Defendants’/Applicants’ application are but a mere academic exercise. He deponed that Defendants’/Applicants’ application is akin to amending the mediation settlement agreement as well as the decree of the court.
9. Annexed to the 3 rd Plaintiff’s /Respondents’ was a letter dated 20 th January 2026, which was a response to the Plaintiffs/Applicants advocates letter dated 19 th January 2026. In this letter, counsel for the Plaintiffs/Respondents stated that his clients could not receive the refund since the time for effecting the refund had lapsed. He also stated that his office was closed on 19 th December 2025 and opened on 12 th January 2026. Counsel also added that the Chief’s letter attached to the Defendants/Applicants’ application was not in conformity with the court’s order hence his clients were not bound to heed the chief’s request.
Submissions
10. The application was canvassed via written submissions. The Defendants/Applicants did not file submissions. The Plaintiffs/Respondents filed their submissions dated 6 th July 2026. They identified the following three issues for determinations: whether the court is functus officio ; whether the Applicants have established sufficient grounds for grant of stay and injunctive relief; and whether the Applicants are entitled to equitable relief after breaching the court-adopted settlement.
11. On whether the court is functus officio , the Plaintiffs/Respondents submitted in the affirmative. They begun their submissions by highlighting the legal foundation of mediation as an alternative dispute resolution mechanism, being article 159 (2) (c) of the Constitution of Kenya and Section 59C and 59D of the Civil Procedure Act. More importantly, the Plaintiffs/Respondents submitted that once a mediation settlement agreement is adopted by the court, it functions as a final judgment and decree of the court and the same should be enforced as such.
12. The Plaintiff/Respondents submitted that the parties herein entered into a mediation settlement agreement wherein the purchase price of the suit property was to be refunded on or before 31 st December 2025. They maintained that the Defendant Applicants did not honour the terms of the agreement as agreed by the parties since there was no refund made to the Plaintiffs/Respondents or their advocate.
13. Granted the above set of circumstances, the Plaintiffs/ Respondents submitted, the Defendants/Applicants are seeking fresh directions requiring the court to authorize payment of the purchase price after the expiry of the timelines set by the parties for doing so. The orders sought, the Plaintiffs/Respondents asserted, are meant to introduce new terms into the already concluded mediation settlement agreement contrary to the law. They also submitted that courts should not rewrite contracts or negotiated agreements freely entered by the parties. Reliance was placed on Flora Wasike v Destimo Wamboko [1988] eKLR to submit that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify the setting aside of a contract or if certain condition remain to be fulfilled and the same have no been carried out. The Plaintiffs/Respondents submitted that such grounds had neither been pleaded nor proved.
14. On the basis of the foregoing, the Plaintiffs/Respondents submitted that the court is functus officio since it discharged its mandate once it adopted the parties’ mediation settlement. As such, granting the orders sought by the Defendants/Respondent would amount to altering the terms of the aforesaid agreement by extending time and authorizing an alternative mode of payment that was never contemplated by the parties. Reliance was placed on Kabansora Millers Limited v Nyangena (Civil Appeal E665 of 2022 [2025] eKLR and the Supreme Court decision in Raila Odinga & 2 others v Independent Electoral and Boundaries Commission & 3 others [2013] eKLR to highlight the importance of the functus officio doctrine and the circumstances that render courts functus officio .
15. As to whether the Defendants/Applicants had met the conditions for s grant of stay and injunction, the Plaintiffs/Respondents submitted that the grant of the said orders had not been qualified. They relied on the case of Giella v Cassman Brown [1973] EA 58 to highlight the conditions that ought to be proved by an Applicant for grant of an injunction. Accordingly, they submitted that an Applicant should demonstrate that they have a prima facie case with high chances of success; demonstrate that they will suffer irreparable loss that cannot be compensated by way of damages; and if the court is in doubt as to the first two conditions, decide the matter on a balance of convenience.
16. Following the above test, the Plaintiffs/Respondents submitted that none of the aforesaid conditions had been met. The Defendants/ Applicants had breached the mediation settlement agreement and a party is such a position cannot be said to have demonstrate a prima facie case. They also stated that loss suffered by the Defendants/Applicants can be compensated by way of damages. Lastly, they submitted that the balance of convenience tilted towards preserving the decree issued by this court.
17. On the question of stay, the Plaintiffs/Respondents submitted that the Defendant/Applicants had not demonstrated sufficient cause as mandated by Order 42 Rule 6 of the Civil Procedure Rules. They added that there was neither a pending appeal nor an executable order capable of being stayed. The Plaintiffs/ Respondents equally submitted that the application merely sought to suspend the legal consequences of the Defendants/Applicants own breach and maintained that courts do not issue injunctions to protect parties from the consequences of their own breach.
18. Lastly, on the issue of whether the Defendants/Applicants deserve an equitable relief, the Plaintiffs/ Respondents submitted that equity aids the vigilant and not the indolent. They asserted that the Defendant/Respondents never complied with the terms of payment or refund stipulated in mediation settlement agreement and adopted as an order of the court. They also submitted that the explanation given by the Defendant/Applicants for their non-compliance did not hold water for the following reasons: Foremost, the mediation settlement agreement expressly provided that the payment or refund was to be effected through the Plaintiffs’/Respondents’ advocate. Secondly, the Defendants/Applicants only sought the court’s intervention after the lapse of the agreed upon refund period; nothing prevented them from seeking the courts intervention before the refund deadline. To this end, the Plaintiffs/Respondents submitted that the Defendants/Applicants’ application reeked of negligence.
19. The Plaintiffs/Respondents referred the court to sections 1A AND 1B of the Civil Procedure Act which obligates parties to help courts in the expeditious, efficient and just determination of disputes. Reliance was also placed on Shah v Mbogoh [1967] EA 116 to support the submission that the court’s discretion should not be used to assist a party who deliberately delays or obstructs the course of justice.
Issues, Analysis and Determination
20. After careful consideration of the application, the response thereto as well as the submissions filed by the Plaintiffs/ Respondents, the court has set out the following issues for determination:
a. Whether the court is functus officio
b. If the answer to issue a) above, whether the Defendant/Applicants should be allowed to refund the Plaintiff/Respondents the purchase price of the suit property despite failing to pay the refund within the agreed upon deadline;
c. Who should bear the costs of the application
21. Whereas the Plaintiffs/Respondents identified an issue concerning stay and injunction, the same are already spent. This is because the Defendant/Applicant sought the said prayers pending the hearing and determination of this application. Accordingly, the court will not address the said issues in its analysis.
22. The next preliminary point or issue I address is that failure to file submissions did not, and does not ordinarily, prejudice a party although it is advisable for one to always urge their case, unless it is straightforward. Submissions are only arguments meant to highlight points considered important by the party submitting, for the court to look at from their perspective. They do not constitute facts or evidence or pleadings for the party hence they can as well be ignored by the court if they are irrelevant, even if filed or urged orally. In Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR) (9 May 2014) (Judgment) , the Court of Appeal held:
“Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented .”
23. This means that this court will consider the merits of the instant application, absence of their submissions notwithstanding. I now begin with the analysis of the issues in sequence.
a) Whether the court is functus officio
24. The functus officio doctrine was aptly considered in Kabansora Millers Ltd v Nyangena (Civil Appeal E665 of 2022) [2025] KEHC 4754 (KLR) (Civ) (27 March 2025) (Ruling) where the court, after analyzing several precedents determined that:
‘‘9. The doctrine of functus officio dictates that once a court has rendered its final decision, it ceases to have jurisdiction over the matter, save for specific exceptions such as review or correction of clerical or arithmetical errors.
10. In expounding on the functus officio doctrine, the Supreme Court in Odinga v Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling) where the Supreme Court held that once a court delivers its judgment, it becomes functus officio and cannot review or reopen the matter unless provided under specific provisions of the law to ensure legal certainty and justice.
11. In Telkom Kenya Limited v Ochanda (Suing on his own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2015] KESC 18 (KLR), and Kenya Airports Authority v Mitu- Bell Welfare Society & 2 others [2016] eKLR , the Court of Appeal reaffirmed the doctrine of functus officio, holding that once a court has fully and finally adjudicated upon a matter, it cannot reopen or reconsider the case, except under defined circumstances such as through a successful application for review.
12. The functus officio principle serves to ensure finality in judicial decisions and prohibits courts from revisiting matters already conclusively determined, except where expressly permitted by law. It promotes judicial efficiency, certainty, and the integrity of the judicial process.
13. In the present case, the Respondent has invoked Order 45, which provides for review under specific grounds, including the discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason. In light of this, the court is not necessarily functus officio, and may consider the application on its merits within the confines of the review jurisdiction.
25. The Plaintiffs/Respondents herein submitted that the court is functus officio because the mediation settlement agreement adopted as an order of the court operates as a judgment and decree of the court. As such, the court does not have the power to alter its terms, more so where there is no review application against the same. The Defendant/Applicants sought this court’s intervention in enforcing the mediation settlement agreement entered between the parties and adopted as an order of this court. Does this prayer render the court functus officio ?
26. In answering this question, it is imperative the appreciate the law, meaning and scope of the functus officio doctrine. Section 34 of the Civil Procedure Act empowers the court issuing a decree to determine issues between the parties in suit with regard to execution, discharge or satisfaction of the decree in question. The said section provides that:
34. Questions to be determined by court executing decree
(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree. and not by a separate suit.
27. The issue in this matter is that there was a mediation agreement one of whose immediate terms was to be honoured within a certain time. The Term was not. Thus, was the refund to be made in execution of the decree or not? In my view, it was. Further to the above, several decisions point to a stark difference between a party seeking to re-open litigation and a party seeking to enforce a decree of the court. In Merisia & 2 others v Kalungokor (Environment & Land Case 139 of 2013) [2025] KEELC 564 (KLR) (13 February 2025) (Ruling) , this court determined that:
‘‘48. From the above authorities by which I am bound it is clear that while functus officio prevents a court from revisiting the matter on a merit-based re-engagement once final judgment has been entered and a decree issued, it does not bar the Court from carrying out post-judgment procedures in the same matter. In the instant matter, the Court was only invited to consider a post-judgment step that ought to have been carried out if the parties herein were genuine in the implementation of the judgment of the Court. Thus, the court is not functus officio. If ever it was, then how is it to be satisfied that its decree has been implemented when one or more of the parties keep complaining that that has not been done? I dismiss that limb of argument.’’ (Emphasis added )
28. In Nderitu & 55 others v Telkom Kenya Limited & another (Civil Suit 165 of 2006) [2024] KEHC 2297 (KLR) (1 March 2024) (Ruling), the High Court (Nyaga, J) determined as follows:
‘‘61 . The Applicants are seeking to enforce the Judgment of this court delivered on 13 th July, 2011. It is thus clear that they are not seeking a re-engagement of the Court with its earlier decision. A court does not become functus officio merely because it has delivered a final decision in civil proceedings. The court retains its power to undertake several actions including but not limited to stay, review, execution proceedings and such other acts and steps towards the closure of the file. In Leisure Lodge Ltd vs Japhet Asige and another (2018) EKLR the court said and held:
“On the question that this court is functus officio, I do find that a trial court retains the duty and jurisdiction to undertake and handle all incidental proceedings even after a final judgment is delivered provided such proceedings do not amount to re-trying the cause but geared towards bringing the litigation to an end. That is the reason, the court must undertake settlement of a decree, if parties cannot agree, handle applications for stay, review, setting aside and even execution proceeding including applications under Section 94 of the Act. (Emphasis added)
29. Similarly, in Okoiti v National Transport and Safety Authority & another (Petition 97 of 2018) [2021] KEHC 12642 (KLR) (Civ) (25 February 2021) (Ruling), the court determine as hereunder on the doctrine of functus officio:
‘‘[19] This principle has been aptly summarized further in Jersey Evening Post Limited v. A1 Thani [2002] JLR 542 at 550 :
‘‘ A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected . The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available”.
27. The Court of Appeal (in Telkom Kenya Limited v John Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR ) went on to express itself as follows:
“ The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued . There do therefore exist certain exceptions and these have been captured thus in JERSEY EVENING POST LTD VS AI THANI [2002] JLR 542 at 550, also cited and applied by the Supreme Court;
‘A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.’’
28. From the foregoing, it is clear that a court becomes functus officio once it has performed all its duties in a case, usually by rendering a final decision. As per the decision of the Court of Appeal in Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR , the doctrine does not allow “ a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued.”
30. Nevertheless, the Petitioner also seek that the 1 st Respondent and its Chief Executive Officer be found guilty and punished for contempt. So long as the Petitioner is seeking to enforce the judgement and the decree of this Court, he is entitled to approach the Court for the necessary orders . It does not require citation of any decided case to hold that a court of law has jurisdiction over a matter until the decree is fully satisfied. A decree-holder is free to engage the court for assistance in the execution of the decree. One of the methods for executing a decree is through the commencement of contempt of court proceedings. The Petitioner’s application can therefore not be declared functus officio in so far as it seeks to enforce the judgement and the decree of the Court . (Emphasis added)
30. Flowing from the above stated, I am of the view that a court does not merely become functus officio merely because it has rendered its final judgment and issued a decree. There exist special circumstances where is a court is allowed to determined some issues between the parties, post-judgment, so as to facilitate the finality of the matter. One such instance is where a party is seeking to enforce or the enforcement of the decree of the court as is in the instant case. Accordingly, the court finds that it is not functus officio since the issue at hand relates to the enforcement of a decree of this court, which was sought.
31. From the record, it is clear that this court adopted he mediation agreement as the decree of this court on 29 th October 2025. This was two months after the parties entered into the mediation agreement. Upon adoption, the terms of the mediation agreement, and the adjustment thereto by the consent of the parties, became the decree of the court forthwith.
32. There is a nuance relating to the above issue and which may confuse a person not keen, because of the following. The applicants argue that the parties agreed for a time for the refund/ payment, which is true. The issue applicant brought before the court is for extension of the time and not the variation of the mediation agreement. The terms of the mediation agreement remain. It is noteworthy that if the respondents argue that for the court to vary the time would mean the variation or review of the mediation agreement hence interfering with the same, it is quite clear that initially the issue of fixation of the consequence of failure to adhere to the 31 st December, 2025 date was not in the mediation agreement. This was a creature of all the parties when the mediation agreement was adopted, and was introduced by the Respondents specifically. The default issue, while agreed on, was not, in my humble view, cast on stone if some intervening factors would come about. Thus, the only issue now at hand is that the time which was agreed upon, and which was part of the agreement, elapsed not out of their mistake. In my view, the matter does not seek to re-open the case as or alter the terms of the agreement between the parties as submitted by the Plaintiffs/ Respondents. Neither, is it a review of the entire agreement but a quest to honour or enforce part of the decree. This is an issue which Section 3A of the Civil Procedure Act, and Article 159(2)(d) of the Constitution, and equity (one of the national values embraced by the Constitution (see Article 10(2)(b) step in to cure in order to bring justice to parties.
b) Whether the Defendant/Applicants should be allowed to refund the Plaintiff/Respondents the purchase price of the suit property despite failing to pay it within the agreed upon deadline.
33. The existence of a mediation settlement agreement between the parties is not disputed. Its terms are not contested either. Through it, the Defendants/Applicants were expected to pay a specific sum in relation to mediation settlement reached as against the purchase of the suit property on or before 31 st December 2025. This did not happen. It is not disputed. The Defendants/ Applicants blamed the Plaintiffs/ Applicants and as well as the opposing counsel for failing to receive the said refund. They stated that they obtained the funds as early as August 2025 but the opposing side declined to receive the money. Sometimes in November 2025, the Defendants/Applicants stated that they approached the Area Chief with the intention of having the Plaintiffs/Respondents receive the money but the latter refused the honour the chief’s summons hence receive the money. This allegation is supported by the area Chiefs’ letter dated 17 th November 2025.
34. In their response, the Plaintiffs/ Respondents maintained that they are not willing to receive the funds since the same were never availed within the agreed upon timeframe. Counsel for the Plaintiffs/Respondents stated that his office was closed from 19 th December 2025 and opened on 12 th January 2026, by which time the deadline for effecting the refund had already lapsed. Counsel also stated that he advised his clients not to honour the Chief’s summons since the same was not part of the mediation settlement agreement or the decree of the court. The Plaintiffs/Respondents blamed the Defendants/Applicants for failing to honour the decree of the court and maintained that they are processing title to the suit property.
35. The court is called upon to determine whether the decree of the court should be enforced, considering that the time for making a refund to the Plaintiffs/Respondents lapsed. In my view, considering the totality of the facts herein, the Defendants/Applicants made substantial efforts to have the refund or payment effected. However, according to the applicants, the Plaintiffs/Respondents made it impossible for the refund to be made. Here is the explanation for the holding. The Plaintiffs/Respondents counsel admitted having advised his clients not to attend the Chief’s meeting, whose purpose was to effect the refund. In his response to the Defendants/Applicant’s counsel, the Plaintiffs’/Respondents’ counsel also stated that his office was closed from 19 th December 2024 to 12 th January 2025. It is worth noting that the Respondents were represented by counsel. The sums payable under the mediation agreement ought to have been paid through their offices since they were the legally recognized agents of the Respondents. The closure of their offices from 19 th December, 2025 to 12 th January 2026, cut out by their own or their client’s choice, the remaining period of almost two weeks before the lapse of the time agreed on. Further, they did not communicate to the applicants and even the Court in writing or even verbally as to who would receive the money due during that time of closure of offices befo
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