Magaiwa v Magige & another (Environment and Land Miscellaneous Application 7 of 2020) [2026] KEELC 5368 (KLR)
The bottom line
#A Kenyan landowner lost his bid to redo a court-supervised land survey because a consent order already carried out is final and cannot be reopened.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the Application has been overtaken by events
- 2.who should bear the costs
Key legal issues
#Whether the Notice of Motion dated 14th May 2026 has been overtaken by events
The Motion is overtaken by events; the consent order of 28th June 2021 has been fully performed - survey conducted, boundaries established and mutation forms executed by the Deputy Registrar - and prayers 4 and 5 in truth sought reversal of the consent, which the Applicant does not challenge and for which no setting-aside ground was pleaded
The court restated the Hirani principle that a consent order is contractual and may only be set aside on contractual grounds, the second limb (unfulfilled conditions) being decisive here: all conditions of the consent had been carried out. The surveyor complied with the court's directions. Once performance is complete, a dissatisfied party cannot renegotiate. The Court is functus officio over the orders of 26th October 2023 and 17th November 2025, and granting the prayers would require undoing a completed exercise.
Whether the Court should order a fresh survey and boundary establishment
Refused; the surveyor complied with the directions of the Court, and a further survey without proper reason would reopen and re-litigate concluded issues
The consent required partition in accordance with the shares in the register, not merely according to existing settlements; the 'current settlements' limb could not be read in isolation of the shareholding clauses. The survey confirmed encroachment by the Applicant. The relief sought was of a wholly different character from implementation - it was a disguised attempt to set aside or review the orders of 26th October 2023 or 17th November 2025, which stand.
Who should bear the costs of the Application
The Applicant, being unsuccessful, shall bear the costs; no good reason to depart from the ordinary rule that costs follow the event
Section 27(1) of the Civil Procedure Act vests costs in the court's discretion with costs following the event. The Motion failed, so the Applicant could not be awarded costs; the Respondent was obliged to file a Replying Affidavit, submissions and attend court in answer to the Motion, and the court found no good reason to deny him costs.
Legal principles established
#- A consent order has contractual effect and can only be set aside on grounds that would justify setting aside a contract
- A consent order which has been performed cannot be reopened by a dissatisfied party
- Courts do not act in vain and will not issue orders where the subject matter has been overtaken by events
- Costs follow the event and are compensatory rather than punitive
- A court that has passed final judgment is functus officio and cannot revisit the matter on the merits save as provided by law
Court orders
#- 1.The Notice of Motion dated 14th May 2026 is hereby dismissed in its entirety
- 2.The Applicant shall bear the costs of the Application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya, and Order 9 Rule 9 and Order 51 of the Civil Procedure Rules, 2010
Relief refused
#Prayer 3 - leave for M/s Apondi & Company Advocates to come on record in place of M/s Mwita Kerario & Company Advocates
It is a prayer within a Motion which cannot stand and cannot survive the dismissal of the Motion of which it forms part; nothing prevents a fresh properly constituted application under Order 9 Rule 9
Prayers 4 and 5 - fresh resurvey of LR. BUKIRA/BWISABOKA/155 and preparation of documents aligning with the resurvey
The consent order has been fully implemented; the survey was done, boundaries established and mutation forms executed by the Deputy Registrar, so the prayers are overtaken by events and seek reversal rather than implementation of the consent
Costs
The Applicant shall bear the costs of the Application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a) The Notice of Motion dated 14th May 2026 is hereby dismissed in its entirety. b) The Applicant shall bear the costs of the Application.
It follows, the effect of a consent order being contractual, that this consent could as well be said to have been discharged by performance.
An Application is overtaken by events when the state of affairs which it was framed to address has, by the time of determination, ceased to exist or it has diametrically changed as to render the application otiose
In that respect then, this Court is functus officio.
It follows that prayers 4 and 5 do not seek the implementation of the consent at all. Instated, they seek its reversal.
As to whether the Motion amounts to an abuse of the process of this Court, I find so, as I dismiss the application.
Issues in the judgment
#The Motion's prayer 4 refers to a consent dated 28/07/2021 while the record consistently dates the consent order 28th June 2021
The Motion is described as dated 14th May 2026 and filed on 29th May 2026 in the opening paragraph, but paragraph 9 states it was filed under Certificate of Urgency on 14th May 2026, and the originating Motion is elsewhere described as dated 19th March 2020 or 10th March 2020 as amended
The sum the Applicant paid towards purging contempt is stated as Kshs. 56,000/= while the contempt order directed refund of Kshs. 56,500/= (half of Kshs. 113,560/=), a figure which itself does not match the stated half
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Magaiwa v Magige & another (Environment and Land Miscellaneous Application 7 of 2020) [2026] KEELC 5368 (KLR)", Case Analysis (2026). ELC Misc No. 7 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5368/eng@2026-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.