Magutu & 2 others v Bore & 2 others

d. That in the alternative to prayer (2) above, this Hon Court be pleased to order counsel for the Plaintis/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 adavit deponed by the Florence Emense Boke, the 1st 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 31st 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 Plainti/Respondents and their counsel, whom they alleged, refused to take the refund as agreed in their mediation settlement agreement. The 1st Defendant/respond annexed to her adavit a letter written by the area Chief and dated 17th December 2025 and whose contents were to the eect that the 3rd Plainti/Respondent had refused to attend the chief’s meeting and receive the refund from the Defendants/Respondents. 4. Also annexed to the adavit is a letter a letter written by the Defendants/Applicants’ counsel dated 19th January 2026. The gist of this letter is that the Defendants/were ready with the refund since August 2025 but the Plainti/Respondents had refused to accept the same. Counsel also maintained that he had he had given his clients the Plaintis’/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 Plaintis/Respondents. 5. The Defendants/Respondents stated that the Plainti/Respondents invaded the suit property on 21st 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 Plainti/Respondent’s replying adavit 6. The 3rd Plainti/Respondent led a Replying Adavit dated 6th February 2026. He maintained that the Plainti/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 31st December 2025 as per the mediation settlement agreement, but the same did not happen. The 3rd Defendants/Respondents also stated that the payment or refund was to be made through their advocate. 7. It was the 3rd Plainti/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 3rd Plainti/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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5592/eng@2026-09-22 2

page 2 of 10

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 ocio. The rationale for this assertion according to the 3rd Plainti/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 3rd Plainti’s /Respondents’ was a letter dated 20th January 2026, which was a response to the Plaintis/Applicants advocates letter dated 19th January 2026. In this letter, counsel for the Plaintis/Respondents stated that his clients could not receive the refund since the time for eecting the refund had lapsed. He also stated that his oce was closed on 19th December 2025 and opened on 12th 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 le submissions. The Plaintis/Respondents led their submissions dated 6th July 2026. They identied the following three issues for determinations: whether the court is functus ocio; whether the Applicants have established sucient 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 ocio, the Plaintis/Respondents submitted in the armative. 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 Plaintis/Respondents submitted that once a mediation settlement agreement is adopted by the court, it functions as a nal judgment and decree of the court and the same should be enforced as such. 12. The Plainti/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 31st 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 Plaintis/Respondents or their advocate. 13. Granted the above set of circumstances, the Plaintis/ 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 Plaintis/ 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 eect and can only be set aside on grounds which would justify the setting aside of a contract or if certain condition remain to be fullled and the same have no been carried out. The Plaintis/Respondents submitted that such grounds had neither been pleaded nor proved. 14. On the basis of the foregoing, the Plaintis/Respondents submitted that the court is functus ocio since it discharged its mandate once it adopted the parties’ mediation settlement. As such, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5592/eng@2026-09-22 3

page 3 of 10

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 ocio doctrine and the circumstances that render courts functus ocio. 15. As to whether the Defendants/Applicants had met the conditions for s grant of stay and injunction, the Plaintis/Respondents submitted that the grant of the said orders had not been qualied. 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 suer irreparable loss that cannot be compensated by way of damages; and if the court is in doubt as to the rst two conditions, decide the matter on a balance of convenience. 16. Following the above test, the Plaintis/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 suered 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 Plaintis/Respondents submitted that the Defendant/Applicants had not demonstrated sucient 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 Plaintis/ 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 Plaintis/ 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 eected through the Plaintis’/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 Plaintis/Respondents submitted that the Defendants/Applicants’ application reeked of negligence. 19. The Plaintis/Respondents referred the court to sections 1A AND 1B of the Civil Procedure Act which obligates parties to help courts in the expeditious, ecient 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 led by the Plaintis/ Respondents, the court has set out the following issues for determination: a. Whether the court is functus ocio https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5592/eng@2026-09-22 4

page 4 of 10

b. If the answer to issue a) above, whether the Defendant/Applicants should be allowed to refund the Plainti/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 Plaintis/Respondents identied 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 le 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 led 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. Whether the court is functus ocio 24. The functus ocio 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 ocio dictates that once a court has rendered its nal decision, it ceases to have jurisdiction over the matter, save for specic exceptions such as review or correction of clerical or arithmetical errors. 10. In expounding on the functus ocio 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 ocio and cannot review or reopen the matter unless provided under specic 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 rearmed the doctrine of functus ocio, holding that once a court has fully and nally adjudicated upon a matter, it cannot reopen or reconsider the case, except under dened circumstances such as through a successful application for review. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5592/eng@2026-09-22 5

page 5 of 10

12. The functus ocio principle serves to ensure nality in judicial decisions and prohibits courts from revisiting matters already conclusively determined, except where expressly permitted by law. It promotes judicial eciency, certainty, and the integrity of the judicial process. 13. In the present case, the Respondent has invoked Order 45, which provides for review under specic grounds, including the discovery of new and important evidence, an error apparent on the face of the record, or any other sucient reason. In light of this, the court is not necessarily functus ocio, and may consider the application on its merits within the connes of the review jurisdiction. 25. The Plaintis/Respondents herein submitted that the court is functus ocio 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 ocio? 26. In answering this question, it is imperative the appreciate the law, meaning and scope of the functus ocio 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) 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 dierence 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. 28. 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. From the above authorities by which I am bound it is clear that while functus ocio prevents a court from revisiting the matter on a merit-based re-engagement once nal 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 ocio. If ever it was, then how is it to be satised 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) 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 13th 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 ocio merely because it has delivered a nal decision in civil proceedings. The court retains its power to undertake several actions including but not limited https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5592/eng@2026-09-22 6

page 6 of 10

to stay, review, execution proceedings and such other acts and steps towards the closure of the le. In Leisure Lodge Ltd vs Japhet Asige and another (2018) EKLR the court said and held: “On the question that this court is functus ocio, I do nd that a trial court retains the duty and jurisdiction to undertake and handle all incidental proceedings even after a nal 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 ocio: ‘‘[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 nality. Once proceedings are nally 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 reengagement with the case once nal 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 nality. Once proceedings are nally 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 ocio once it has performed all its duties in a case, usually by rendering a nal 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 nal judgment has been entered and a decree thereon issued.” 30. Nevertheless, the Petitioner also seek that the 1st Respondent and its Chief Executive Ocer 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5592/eng@2026-09-22 7

page 7 of 10

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 satised. 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 ocio 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 ocio merely because it has rendered its nal 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 nality 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 nds that it is not functus ocio 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 29th 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 xation of the consequence of failure to adhere to the 31st 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 specically. 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 Plaintis/ 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. Whether the Defendant/Applicants should be allowed to refund the Plainti/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 specic sum in relation to mediation settlement reached as against the purchase of the suit property on or before 31st December 2025. This did not happen. It is not disputed. The Defendants/ Applicants blamed the Plaintis/ 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 Plaintis/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 17th November 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5592/eng@2026-09-22 8

page 8 of 10

34. In their response, the Plaintis/ 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 Plaintis/ Respondents stated that his oce was closed from 19th December 2025 and opened on 12th January 2026, by which time the deadline for eecting 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 Plaintis/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 Plaintis/Respondents lapsed. In my view, considering the totality of the facts herein, the Defendants/Applicants made substantial eorts to have the refund or payment eected. However, according to the applicants, the Plaintis/Respondents made it impossible for the refund to be made. Here is the explanation for the holding. The Plaintis/ Respondents counsel admitted having advised his clients not to attend the Chief’s meeting, whose purpose was to eect the refund. In his response to the Defendants/Applicant’s counsel, the Plaintis’/ Respondents’ counsel also stated that his oce was closed from 19th December 2024 to 12th 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 oces since they were the legally recognized agents of the Respondents. The closure of their oces from 19th December, 2025 to 12th 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 oces before the lapse of time. This act, according to the court, could have made it impossible for the Defendants/Applicants to physically visit the said oce and/ or make any refund or payment. This was not the applicants’ inaction or will. 36. Whereas the Plaintis/Respondents maintained that the Chiefs summons was irrelevant since the same was not ordered by the court, a court of equity, and this court is one, would look more into the substance of the evidence adduced as opposed to the form of evidence or procedure. Moreover, a court of equity would also consider as done that which ought to be done but was never done owing the actions of a party to a contract/agreement who seeks to benet from his own (in)action. This is the unconscionability which equity steps in to remedy. In my humble view, the Applicants’ move to try and involve a neutral party or body or oce to help in this process demonstrates both an act of desperation and good faith on their part towards the performance of the mediation agreement. 37. Accordingly, the court nds and holds that the Plaintis/Applicants made substantial eorts to full their part of the bargain. They should not be faulted for failing to the sum agreed while the breach in question was occasioned by the Plaintis/Respondents and/ or their advocate. The Plainti’s/ Respondents should not be allowed to benet from their own mistakes as was held in Basco Products Kenya Limited v Machakos County Government, Nairobi HC Civil Suit No. 187 of 2015 where the court armed the long held legal principle that a party should not benet from its own mistakes by holding that: (11) Moreover, it is recognized by dint of Article 227 of the Constitution as read with Section 121 of the Public Finance Management Act and the Public Procurement and Disposal Act (Chapter 412C of the Laws of Kenya (which was then the applicable law at the time material to this procurement) that the responsibility to draw the formal contract was the Defendant's. Having failed to comply with the requirements of the law, it would be untenable for the Defendant to purport to rely on its own omission to avoid the lawful obligations it created for itself. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5592/eng@2026-09-22 9

page 9 of 10

Accordingly, Lord Diplock in Cheall vs. Association of Professional Executive Clerical and Computer Sta (1983) 1 ALL ER expressed the view that: “This rule of construction, which is paralleled by the rule of law that a contracting party cannot rely upon an event brought about by his own breach of contract as having terminated a contract by frustration is often expressed on broad language as “A man cannot be permitted to take advantage of his own wrong.” 38. The Court is not convinced by the Plainti’s /Respondent’s argument that the Defendant/Applicants were negligent for failing to seek the intervention of the court before the deadline of the praymentt on 31st December 2025. Foremost, the deadline had not lapsed by the time the Respondents closed their oces and chances are, the Plaintis/Respondents would perhaps change their minds to receive the refund or payments before the deadline. Perhaps this was the reason of deliberate avoidance of contact with the applicants towards the end of the agreed period. The court has also considered that the deadline fell on a date when the courts were not operational but that did not stop the parties from performing part of their bargain. It did not entitle any party to frustrate the performance of the agreement, either. Thus, the application succeeds. The Respondents are directed to forthwith, but not more than seven (7) days from this ruling, inform in writing and provide the applicants with the bank details of the account to which the agreed sum should be paid. This information should be by way of a letter copied to and led in court through its Case Tracking System (CTS) for record purposes. The Applicants shall deposit into the said account the agreed sum within seven (7) days of receipt of the information, in default of which they entire mediation agreement shall be deemed to have collapsed and no settlement reached. The Plainti’s/ Respondents shall be at liberty to move the court accordingly. 39. Upon deposit of the sum, within the timelines stipulated, the mediation agreement and settlement shall have taken eect. Who should bear the costs of the application 40. The general principle that guides awards is stipulated in Section 27 of the Civil Procedure Act. Costs are awarded at the discretion of the court and the same follow event. The court will exercise its discretion in favour of the Defendants/Applicants and award them costs of the application 41. Orders accordingly RULING DATED, SIGNED AND VIRTUALLY VIA THE TEAMS PLATFORM THIS 22ND SEPTEMBER 2026. HON. DR. IUR NYAGAKA, JUDGE In the presence of, Agure Advocate for the Respondents Lewis Nyakundi watching brief for 2rd Respondent No appearance for the Applicant (Mr. Agure Advocate has called him, he informs him he has technical challenges logging in) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5592/eng@2026-09-22 10

page 10 of 10