Saronera Limited v Mohamed Abdi Were, Hussein Hassan Amin & Josephat Namada Simoni

b) That this Honourable Court be pleased to discharge and release the 1st and 3rd Defendants from these proceedings with no further liability or obligation arising therefrom. c) That it be ordered that the balance of liability herein is against the 2nd Defendant alone. d) That costs of the application be in the cause. 2. The application is premised on grounds on its face and on the 3rd Defendant’s supporting affidavit. He avers that his involvement in the suit arose in his capacity as an Advocate and as a holder of a Power of Attorney on behalf of the 1 st Defendant for purposes of facilitating a joint venture in the development and sale of town houses by the 2 nd Defendant, on the 1st Defendant's property, LR No. 3734/252. Further, that the Plaintiff paid a deposit of kshs.20 million towards the acquisition of a unit in the said development but the agreement fell through. He explains that the dispute was then determined vide a Consent entered on 11 th May 2023 ELC CASE NO. E321 OF 2022 Page 2 of 12 Ruling

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between the parties, to settle the Plaintiff's claim through a refund of the said deposit. 3. He claims that as part of fulfilling the said Consent, he paid over Kshs.12 million, covering the 1 st and 3rd Defendants’ obligations. Further, that they agreed with the 2 nd Defendant in the presence of Mr. Gikera Advocate and Director of the Plaintiff, that the 2nd Defendant would be solely responsible for the balance of Kshs. 7.5 million, which he undertook to pay from expected funds from a Nairobi City County Government contract. 4. He avers that it was agreed that upon payment of Kshs.12.5 million, the 1st Defendant and himself, would no longer be required to participate in the proceedings, having fulfilled their share of the obligations under the Consent thus being that they have no further role to play in this matter, it would be unfair and unnecessary to continue involving them in proceedings in which they have no further liability. ELC CASE NO. E321 OF 2022 Page 3 of 12 Ruling

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Response 5. In opposition, the Plaintiff filed a replying affidavit sworn by its Director, one Stephen Njoroge Gikera. He avers that pursuant to the impugned Consent adopted on 11th May 2023, all Defendants jointly undertook to settle the decretal sum in full by 30th June 2023. Further, that the Consent was entered into based on the Defendants’ representations that they had identified a purchaser who had signed a sale agreement and paid a deposit towards the purchase and that it has never been varied, set aside or appealed against. 6. He contends that the 1st and 3rd Defendants having made partial payment does not extinguish them from obligations until the entire amount has been fully settled, they remain indebted to the Plaintiffs in the sum of Kshs.7.5 million. He also denies the allegation that an agreement existed that the 2nd Defendant alone would be responsible for settling the sum of kshs.7.5 million to the Plaintiff. ELC CASE NO. E321 OF 2022 Page 4 of 12 Ruling

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7. The 2nd Defendant did not file a response. 8. The application was canvassed by way of written submissions. Submissions 9. The 1st and 3rd Defendants reiterate their averments as per the supporting affidavit and urge the Court to exercise its jurisdiction and discharge them from this suit because out of the obligation to pay Kshs.20 million, they have paid kshs.12.5 million while the 2nd Defendant took personal responsibility of paying the balance of kshs.7.5 million to the Plaintiff, a position that was understood between the parties. 10. He also submits that from the record, the 2 nd Defendant is the party against whom execution for the balance of Kshs.7.5 million has been pursued, and points out that the said party filed applications dated 29th January 2024 and 25th March 2024 in which he personally sought Orders to either pay in installments or to extend time for payment exclusive of any ELC CASE NO. E321 OF 2022 Page 5 of 12 Ruling

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claims against them. They insist that their continued presence in the suit serves no purpose as it only continues to prejudice them in costs thus their removal from these proceedings at this stage will not prejudice execution for the balance of the settlement amount. He reiterates that for the settlement amount of Kshs.20 million if split into three at Kshs.7.5 million per Defendant the 1 st and 3rd Defendants have paid their several liability of Kshs.12.5 million. 11.On its part, the Plaintiff submits that the impugned Consent remains valid and enforceable against all the Defendants, and it can only be interfered with on grounds such as fraud, collusion, mistake, misrepresentation or any other sufficient cause. Further, that the 1st and 3rd Defendants have failed to demonstrate any legal basis upon which liability can be transferred exclusively to the 2nd Defendant. 12. It also contends that the application is an abuse of Court process since instead of honouring their obligations under the Consent judgment, the Defendants have engaged in a ELC CASE NO. E321 OF 2022 Page 6 of 12 Ruling

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pattern of conduct calculated to frustrate its enjoyment of the fruits of its judgment, including the filing of multiple applications. 13. To buttress its averments, the Plaintiff relied on the following decisions: Flora N. Wasike v Destimo Wansiko (1982–88) 1 KAR 625; Soyonin Farm Ltd & another v Abuko & another (Suing as the administrators of the Estate of the Late Ernest Abuko Otsibo - Deceased) (Civil Appeal E1112 of 2025) [2026] KEHC 8299 (KLR) (14 May 2026) (Ruling); Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266 and Isaac Kamau Ndirangu v Commercial Bank of Africa [2002] eKLR. Analysis and Determination 14. Upon consideration of the instant Notice of Motion application including the respective affidavits as well as rivalling submissions, the only issue for determination is whether the 1st and 3rd Defendants should be discharged from these proceedings. ELC CASE NO. E321 OF 2022 Page 7 of 12 Ruling

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15. The 1st and 3rd Defendants contend that they ought to be discharged from these proceedings, having paid a total of kshs.12.5 million out of the decretal sum of Kshs.20million. They claim that the parties herein had an alleged understanding that the 2nd Defendant will pay the balance of kshs.7.5million. 16. On its part, the Plaintiff contends that the consent judgement herein expressly provides that the Defendants are jointly and/or severally liable, thus the 1st and 2nd Defendants cannot severe their obligations. On the allegation that there was an understanding of the parties that the 2nd Defendant bears the responsibility of paying Kshs.7.5million. which they aver remains unpaid to date, they deny entering into such an understanding and contend that it would have the effect of varying the impugned Consent Judgement which is an impossibility unless factors that would vitiate a contract are proved. ELC CASE NO. E321 OF 2022 Page 8 of 12 Ruling

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17. The Court will determine whether the 1 st and 3rd Defendants should be discharged. Under section 3A of the Civil Procedure Act, it vests the Court with inherent power to make any Orders as may be necessary for the ends of justice to be met. 18. On perusal of the impugned Consent dated the 11th May, 2023 that culminated in the Judgement, I note the 1 st, 2nd and 3rd Defendants admitted that they are liable to refund Kshs.20 million to the Plaintiff and that failure to pay the said amount on or before 30th June, 2023, the Plaintiff would be at liberty to execute. The 1st and 3rd Defendants now seek to extricate themselves from liability which they admitted through a Consent. 19. In Samson Munikah practicing as Munikah & Company Advocates v Wedube Estates Limited [2007] eKLR, the Court of Appeal stated as follows: “In Brook bond Liebig (t) Ltd -vs- Mallya [1975] EA 266, the then Court of Appeal for East Africa ELC CASE NO. E321 OF 2022 Page 9 of 12 Ruling

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set out the circumstance in which a consent judgment freely entered into by the parties to a dispute in court would be set aside by the court. Delivering the leading judgment of the court, Law Ag. P expressed himself thus:‘the circumstances in which a consent judgment may be interfered with were considered by this Court in Hirani -vsKasam [1952] (19 EACA 131) where the following passage from Senton on Judgments and Orders 7 th Edition Vol 1 P 124 was approved: prima facie any order made in the presence and with the consent of the counsel is binding on all parties to the proceedings or action and those claiming under them and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court or if consent was given without sufficient material facts or in misapprehension or in ignorance of material facts or in general for a reason which would enable the court to set aside an agreement.’ 20. From the facts before me while associating myself with the decision cited, I find that the 1 st and 3rd Defendants are ELC CASE NO. E321 OF 2022 Page 10 of 12 Ruling

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bound by the terms of the Consent Judgement. In my view, discharging them from these proceedings amounts to varying the terms of the Consent. I opine that if indeed they were not liable, then they should not have entered into the impugned Consent. Further, they have not demonstrated that the said Consent was obtained through fraud or collusion, or by an agreement contrary to the policy of the Court or if it was given without sufficient material facts or ignorance of material facts. 21. In the foregoing, I find the instant Notice of Motion application unmerited and will dismiss it with costs to the Plaintiff. DATED SIGNED AND DELIVERED AT NAIROBI THIS 5TH DAY OF OCTOBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Ms Opondo for Plaintiff ELC CASE NO. E321 OF 2022 Page 11 of 12 Ruling

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Waziri for 2nd Defendant Wanyagu for 1st and 3rd Defendants Court Assistant: Joan ELC CASE NO. E321 OF 2022 Page 12 of 12 Ruling

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