1. The plaintiffs/decree-holders have filed in this Honourable Court three “settlement agreements” executed between each of the plaintiffs and the defendant/judgment debtor on 20 February 2026 and 23 February 2026.
2. When counsel for the respective parties appeared in court on 18 June 2026, Mr Muchoki, the learned counsel for the plaintiffs/decree holders informed the court that parties had resolved to compromise the decree and, to this end, they had filed the settlement agreements. He wanted the matter to be marked as settled, apparently on the terms of the settlement agreements.
3. Mr. Wafula, the learned counsel judgment debtors agreed and confirmed what Mr Muchoki informed the court was the correct position.
4. Mr Mwangi, learned counsel, who had previously filed two applications for, among other things, stay of execution of the decree and inclusion of his client to this suit as an interested party, informed the court that he had filed an appeal against the decision of this Honourable Court dismissing his applications and that a ruling on an application in the Court of Appeal for stay of execution was due to be delivered on 24 April 2026.
5. The Court of Appeal ruling was eventually rendered on 29 May 2026 and when counsel returned to court on 15 June 2026, Ms. Wangui, the learned counsel holding brief for Mr Muchoki renewed her application to have the settlement agreements adopted since there was nothing standing in the way of execution of the decree. Mr Wafula, the learned counsel for the judgment debtors was of the same view.
6. On his part, Mr Mwangi informed the court that the appeal in the Court of Appal was pending and that some steps toward its progression had been made. He was also of the position that the settlement agreements could not be adopted in the absence of a formal application for this purpose.
7. In truth, Mr Mwangi had no right of audience his application to bring into this a suit a party that he would have represented having been dismissed. His presentations would not, therefore, have any consequence on the orders that the court was bound to make.
8. On 15 June 2026, I directed that I will make the appropriate orders on 1 July 2026 after I have had chance to read the ruling of the Court of Appeal. I have considered the ruling which basically dismissed Mr Mwangi’s client’s application for stay. The Court of Appeal was not satisfied that the applicant had met the threshold for the grant of the order for stay under rule 5(2)(b) of the Court of Appeal Rules.
9. More than that, I have had occasion to consider the settlement agreements which the decree holders want this Honourable Court to adopt as settling this matter. At the background of the decree-holders’ quest to have the settlement agreements adopted are previous efforts by way of applications to have the decree executed.
10. A brief background of decree and subsequent efforts for its execution is that it was issued on 19 December 2019. In their bid to recover the decretal sum, on or about 22 June 2023 the decree holders, inter alia, moved the court for its leave to sell the defendant's properties. By the same application, the decree holders also prayed that the terms of sale be settled by the Court. In its ruling rendered on 12 July 2023 the court granted the application and ordered:
“i. That the Plaintiffs to propose the terms of settlement within 14 days from today to the Defendant for settlement. In default the Court shall settle the same. The matter shall be fixed for directions after the Ruling on 25th July 2023;
ii. When the terms are settled, the sale shall be individual units and not as per lot;
iii. The valuation must be valid as required under the land Act;
iv. The sale must be subject to a reserve price which shall not be less than 80%. Should the judgement creditors be allowed in terms of settlement to take part in the auction, the purchase price to be paid by the judgement creditor shall not be less than 100% of the current market value as per valuation no less than 1 year old at the time of sale; and,
v. Each party to bear its costs.”
11. In compliance with the directions issued by the court requiring the decree holders to propose terms of sale to the judgement debtor within a period of fourteen days, on or about 15 February 2024, the advocates for the decree holders wrote to judgment-debtor’s advocates, inter alia, seeking their comments or concurrence with the proposed terms of sale. No response was forthcoming and, therefore, the decree holders moved this court by way of a motion dated 31 July 2024 in which they sought the following orders:
“1. That this Honourable Court be pleased to certify the instant Application as Urgent.
2. That this Honourable Court be pleased to issue an Order allowing the sale of the parcels of land known as Plot No. 5905, Section I/MN; CR No. 19849, located in Shanzu Area, Mombasa, and the Parcel LR No. 1482/11/MN together with the subdivisions thereof detailed at paragraph 8 of the Supporting Affidavit hereto;
3. That in addition to the directions/terms set out by the Court in its Ruling dated 12th July 2023, the terms of sale be set as follows:
a) M/s Moran Auctioneers, KTDA Plaza, 6th Floor, Moi Avenue Nairobi, be appointed to dispose of the subject properties by way of public auction;
b) A notification of sale be issued to M/s Moran Auctioneers to conduct the sale of the subject properties with due regard to all applicable laws;
c) That the subject properties be sold by way of public auction guided by valuation reports to be prepared by M/s Musyoki & Associates or by any other certified/licensed valuer that this Honourable Court may appoint. The valuations shall not be less than one (1) year old as at the time of sale;
d) In the event the public auction fails for the first time, M/s Moran Auctioneers be allowed to proceed and re-advertise the sale of the subject properties, and thereafter proceed to sell the same by way of public auction with due regard to all applicable laws; the sale shall be subject to a reserve price of not less than 80%;
e) The plots shall be sold individually and not as a block;
f) In the event of a second or any subsequent sale by public auction, the Plaintiffs/Decree Holders be allowed to place their bid (if they so wish) whether singularly or jointly;
g) In the event of a bid by the Plaintiffs/Decree holders, the purchase price to be paid shall not be less than 100% of the current market value as per valuation not less than one (1) year old;
h) In the event the Decree Holders bid is deemed to be the successful bid, there be a set off of the bid amount as against the decretal sum that shall be outstanding as at the date of the auction sale. Any excess amount realized thereof be deposited in court for onward transmission to the Defendant/Judgement debtor; and,
i) Any other term and/or condition that this Honourable Court may deem fit and/or appropriate to impose;
4. That this Honourable Court be pleased to issue any other Order as it may deem fit and/or appropriate in the interest of justice;
5. That the costs of this application be provided for.
12. This application was heard alongside Mr Mwangi’s client’s two applications to which I have made reference earlier in this ruling. More importantly, on 25 August 2025, I allowed the applications and specifically held as follows:
“49. In effect, the plaintiff’s motion has not been opposed. In the circumstances, I am inclined to allow and I hereby allow the plaintiffs/decree-holders’ motion dated 31 July 2024. The order allowing the motion is subject to the orders made by the court in its ruling of 12 July 2024 as reviewed by the ruling of 8 February 2025.”
13. None of those orders, including my own order of 25 August 2025, has either been overturned, set aside or varied. No explanation has been proffered why those orders which were given at the instance of the plaintiffs’ decree holders have not been executed as proposed by the decree-holders themselves.
14. Granting layer after layer of orders towards execution of the decree in issue exposes this Court to the danger of contradicting itself. I say so because, as much as it has been submitted that the settlement agreements are meant to compromise the decree, it has not been demonstrated how these latest efforts to settle the decree are consistent with the orders made towards the execution of the decree.
15. I have a chance to look at the settlement agreements and, as far as I gather, they seek to compromise the judgment and cover disputes outside this suit. Clause 1.2 of the agreements, for instance, provides as follows:
“1.2 In consideration of the implementation of the provisions hereinafter referred to, the Parties mutually and irrevocably agree that with effect from the Effective Date, all claims shall cease as against either Party and Parties shall be estopped from the institution and/or commencement of any legal proceedings and/or taking any other form of action in respect of any rights or interest or obligations arising directly or indirectly in respect to the said Matters.”
And in clause 3.1 and 3.2, the agreements provide as follows:
“3.1. On satisfaction of the obligations as set out in Clause 2 above, the Parties shall unconditionally release each other from all obligations, liabilities and claims against each other in connection with the Matters, regardless of their legal ground and whether they are known or unknown.
3.2. Subject to Clause 2 above, the Parties agree that this Agreement is in full and final settlement of, and satisfaction of the Parties' obligations and duties to each other and the Parties, for themselves, their successors/personal representatives and assigns do hereby relinquish, waive, release, acquit and forever discharge each other of and from any and all claims, disputes, actions, charges, contractual obligations, complaints, causes of action, rights, demands, debts, damages, or accounting of whatever nature, whether in law or in equity, known or unknown, asserted or not asserted, which they have now or may have in the future against one another, based on any actions, events which occurred prior to this Agreement.”
16. In a nutshell, the settlement agreements are not just limited to the decree sought to be compromised but they are obviously beyond the scope of this suit.
17. If there are any suits in other courts or fora between the parties in this suit, this Court cannot purport to bind the courts in those suits by adopting the settlement agreements. The court has no control over other courts or fora that could be adjudicating on those disputes. Neither can it pretend to have control over the outcome of any future disputes between the plaintiffs and the defendants, merely by a fiat adopting the settlement agreements.
18. Besides my reservations about the danger of inconsistency of the settlement agreements with previous orders granted by this Honourable Court, there is a real likelihood that should there be a dispute between the parties over the discharge of their obligations in the agreements, a new front of litigation would thereby be opened in a suit that has been determined and, therefore, compromise the doctrine of functus officio.
19. For the reasons I have given and, in the absence of any reason why the decree holders have not executed the decree in terms they proposed in the application dated 31 July 2024 and which this Honourable Court endorsed vide its ruling rendered on 25 August 2025, I decline to adopt the settlement agreements as orders of this Honourable Court. It is so ordered.
2. When counsel for the respective parties appeared in court on 18 June 2026, Mr Muchoki, the learned counsel for the plaintiffs/decree holders informed the court that parties had resolved to compromise the decree and, to this end, they had filed the settlement agreements. He wanted the matter to be marked as settled, apparently on the terms of the settlement agreements.
3. Mr. Wafula, the learned counsel judgment debtors agreed and confirmed what Mr Muchoki informed the court was the correct position.
4. Mr Mwangi, learned counsel, who had previously filed two applications for, among other things, stay of execution of the decree and inclusion of his client to this suit as an interested party, informed the court that he had filed an appeal against the decision of this Honourable Court dismissing his applications and that a ruling on an application in the Court of Appeal for stay of execution was due to be delivered on 24 April 2026.
5. The Court of Appeal ruling was eventually rendered on 29 May 2026 and when counsel returned to court on 15 June 2026, Ms. Wangui, the learned counsel holding brief for Mr Muchoki renewed her application to have the settlement agreements adopted since there was nothing standing in the way of execution of the decree. Mr Wafula, the learned counsel for the judgment debtors was of the same view.
6. On his part, Mr Mwangi informed the court that the appeal in the Court of Appal was pending and that some steps toward its progression had been made. He was also of the position that the settlement agreements could not be adopted in the absence of a formal application for this purpose.
7. In truth, Mr Mwangi had no right of audience his application to bring into this a suit a party that he would have represented having been dismissed. His presentations would not, therefore, have any consequence on the orders that the court was bound to make.
8. On 15 June 2026, I directed that I will make the appropriate orders on 1 July 2026 after I have had chance to read the ruling of the Court of Appeal. I have considered the ruling which basically dismissed Mr Mwangi’s client’s application for stay. The Court of Appeal was not satisfied that the applicant had met the threshold for the grant of the order for stay under rule 5(2)(b) of the Court of Appeal Rules.
9. More than that, I have had occasion to consider the settlement agreements which the decree holders want this Honourable Court to adopt as settling this matter. At the background of the decree-holders’ quest to have the settlement agreements adopted are previous efforts by way of applications to have the decree executed.
10. A brief background of decree and subsequent efforts for its execution is that it was issued on 19 December 2019. In their bid to recover the decretal sum, on or about 22 June 2023 the decree holders, inter alia, moved the court for its leave to sell the defendant's properties. By the same application, the decree holders also prayed that the terms of sale be settled by the Court. In its ruling rendered on 12 July 2023 the court granted the application and ordered:
“i. That the Plaintiffs to propose the terms of settlement within 14 days from today to the Defendant for settlement. In default the Court shall settle the same. The matter shall be fixed for directions after the Ruling on 25th July 2023;
ii. When the terms are settled, the sale shall be individual units and not as per lot;
iii. The valuation must be valid as required under the land Act;
iv. The sale must be subject to a reserve price which shall not be less than 80%. Should the judgement creditors be allowed in terms of settlement to take part in the auction, the purchase price to be paid by the judgement creditor shall not be less than 100% of the current market value as per valuation no less than 1 year old at the time of sale; and,
v. Each party to bear its costs.”
11. In compliance with the directions issued by the court requiring the decree holders to propose terms of sale to the judgement debtor within a period of fourteen days, on or about 15 February 2024, the advocates for the decree holders wrote to judgment-debtor’s advocates, inter alia, seeking their comments or concurrence with the proposed terms of sale. No response was forthcoming and, therefore, the decree holders moved this court by way of a motion dated 31 July 2024 in which they sought the following orders:
“1. That this Honourable Court be pleased to certify the instant Application as Urgent.
2. That this Honourable Court be pleased to issue an Order allowing the sale of the parcels of land known as Plot No. 5905, Section I/MN; CR No. 19849, located in Shanzu Area, Mombasa, and the Parcel LR No. 1482/11/MN together with the subdivisions thereof detailed at paragraph 8 of the Supporting Affidavit hereto;
3. That in addition to the directions/terms set out by the Court in its Ruling dated 12th July 2023, the terms of sale be set as follows:
a) M/s Moran Auctioneers, KTDA Plaza, 6th Floor, Moi Avenue Nairobi, be appointed to dispose of the subject properties by way of public auction;
b) A notification of sale be issued to M/s Moran Auctioneers to conduct the sale of the subject properties with due regard to all applicable laws;
c) That the subject properties be sold by way of public auction guided by valuation reports to be prepared by M/s Musyoki & Associates or by any other certified/licensed valuer that this Honourable Court may appoint. The valuations shall not be less than one (1) year old as at the time of sale;
d) In the event the public auction fails for the first time, M/s Moran Auctioneers be allowed to proceed and re-advertise the sale of the subject properties, and thereafter proceed to sell the same by way of public auction with due regard to all applicable laws; the sale shall be subject to a reserve price of not less than 80%;
e) The plots shall be sold individually and not as a block;
f) In the event of a second or any subsequent sale by public auction, the Plaintiffs/Decree Holders be allowed to place their bid (if they so wish) whether singularly or jointly;
g) In the event of a bid by the Plaintiffs/Decree holders, the purchase price to be paid shall not be less than 100% of the current market value as per valuation not less than one (1) year old;
h) In the event the Decree Holders bid is deemed to be the successful bid, there be a set off of the bid amount as against the decretal sum that shall be outstanding as at the date of the auction sale. Any excess amount realized thereof be deposited in court for onward transmission to the Defendant/Judgement debtor; and,
i) Any other term and/or condition that this Honourable Court may deem fit and/or appropriate to impose;
4. That this Honourable Court be pleased to issue any other Order as it may deem fit and/or appropriate in the interest of justice;
5. That the costs of this application be provided for.
12. This application was heard alongside Mr Mwangi’s client’s two applications to which I have made reference earlier in this ruling. More importantly, on 25 August 2025, I allowed the applications and specifically held as follows:
“49. In effect, the plaintiff’s motion has not been opposed. In the circumstances, I am inclined to allow and I hereby allow the plaintiffs/decree-holders’ motion dated 31 July 2024. The order allowing the motion is subject to the orders made by the court in its ruling of 12 July 2024 as reviewed by the ruling of 8 February 2025.”
13. None of those orders, including my own order of 25 August 2025, has either been overturned, set aside or varied. No explanation has been proffered why those orders which were given at the instance of the plaintiffs’ decree holders have not been executed as proposed by the decree-holders themselves.
14. Granting layer after layer of orders towards execution of the decree in issue exposes this Court to the danger of contradicting itself. I say so because, as much as it has been submitted that the settlement agreements are meant to compromise the decree, it has not been demonstrated how these latest efforts to settle the decree are consistent with the orders made towards the execution of the decree.
15. I have a chance to look at the settlement agreements and, as far as I gather, they seek to compromise the judgment and cover disputes outside this suit. Clause 1.2 of the agreements, for instance, provides as follows:
“1.2 In consideration of the implementation of the provisions hereinafter referred to, the Parties mutually and irrevocably agree that with effect from the Effective Date, all claims shall cease as against either Party and Parties shall be estopped from the institution and/or commencement of any legal proceedings and/or taking any other form of action in respect of any rights or interest or obligations arising directly or indirectly in respect to the said Matters.”
And in clause 3.1 and 3.2, the agreements provide as follows:
“3.1. On satisfaction of the obligations as set out in Clause 2 above, the Parties shall unconditionally release each other from all obligations, liabilities and claims against each other in connection with the Matters, regardless of their legal ground and whether they are known or unknown.
3.2. Subject to Clause 2 above, the Parties agree that this Agreement is in full and final settlement of, and satisfaction of the Parties' obligations and duties to each other and the Parties, for themselves, their successors/personal representatives and assigns do hereby relinquish, waive, release, acquit and forever discharge each other of and from any and all claims, disputes, actions, charges, contractual obligations, complaints, causes of action, rights, demands, debts, damages, or accounting of whatever nature, whether in law or in equity, known or unknown, asserted or not asserted, which they have now or may have in the future against one another, based on any actions, events which occurred prior to this Agreement.”
16. In a nutshell, the settlement agreements are not just limited to the decree sought to be compromised but they are obviously beyond the scope of this suit.
17. If there are any suits in other courts or fora between the parties in this suit, this Court cannot purport to bind the courts in those suits by adopting the settlement agreements. The court has no control over other courts or fora that could be adjudicating on those disputes. Neither can it pretend to have control over the outcome of any future disputes between the plaintiffs and the defendants, merely by a fiat adopting the settlement agreements.
18. Besides my reservations about the danger of inconsistency of the settlement agreements with previous orders granted by this Honourable Court, there is a real likelihood that should there be a dispute between the parties over the discharge of their obligations in the agreements, a new front of litigation would thereby be opened in a suit that has been determined and, therefore, compromise the doctrine of functus officio.
19. For the reasons I have given and, in the absence of any reason why the decree holders have not executed the decree in terms they proposed in the application dated 31 July 2024 and which this Honourable Court endorsed vide its ruling rendered on 25 August 2025, I decline to adopt the settlement agreements as orders of this Honourable Court. It is so ordered.