China Wu Yi Company Limited v Belgo Holdings Limited

b) That this Honourable Court be pleased to grant orders for restitution and or refund of kshs.29, 791, 745.00 and kshs.3, 000,00.00 which are all sums paid to the Defendant by the Plaintiff in compliance with the consent order given on 22 nd June,2017 by Hon. Lady Justice K. Bor. c) That the sums aforesaid be paid with interest at court rates. d) That costs be in the cause. 2. The application is premised on grounds on its face and on the supporting affidavit of JOSPHAT ONSONGO. He deposes that vide the impugned Consent Judgement herein, the Court ordered that rent payment was to be made by the Plaintiff only if the Environment and Land Court in ELC 545 of 2012 Belgo Holdings Limited v Kenya Urban Airways Authority & another, determined that the Defendant is the owner of the entire Land Reference No. 28587 and 28586 (Original numbers 3859 and 3860) Peponi Road, and that the road corridors were not acquired by the Government. ELC CASE NO. 362 OF 2017 Page 2 of 18 Ruling

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3. He avers that subsequently, in ELC 545 OF 2012, the Defendant was declared owner of the aforementioned property vide a judgement dated the 30th January 2020. He explains that thereafter, in compliance with the impugned Consent Judgement, the Plaintiff paid the Defendant a sum of kshs.29,791,745.00 and kshs.3,000,00.00. However, in Civil Appeal No. E011 OF 2021, Kenya Urban Roads Authority & Another v Belgo Holdings Limited, the Court of Appeal overturned the judgement in ELC 545 of 2012 vide a judgement delivered on 9th May 2025, thereby invalidating the Defendant’s ownership claim thus the Plaintiff now seeks restitution of the sums paid to the Defendant. Response 4. In opposition, the Defendant filed a Notice of Preliminary Objection dated 14th April 2026. It contends that the application is misconceived as it has not been made in accordance with the requirements of Order 9 of the Civil ELC CASE NO. 362 OF 2017 Page 3 of 18 Ruling

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Procedure Rules in so far as it seeks consent of this Court for Change of Advocates. Further, that Section 91 of the Civil Procedure Act has no application and that the Consent Decree issued on 27th June 2017 has never been varied. It insists that a Consent Judgement cannot be appealed against pursuant to Section 67 (2) of the Civil Procedure Rules. 5. The instant Notice of Motion Application and Preliminary Objection was canvassed by way of written submissions. Submissions 6. The Defendant submits that its Preliminary Objection is based on pure points of law, being the inapplicability of Section 91 of the Civil Procedure Act and the absolute bar under Section 67 (2) of the Civil Procedure Act. It insists that restitution under Section 91 of the Civil Procedure Act applies only on the variation or reversal of a Decree and the Decree herein has not been varied. Further, that Section 67(2) of the Civil Procedure Act bars any Appeal of a Decree passed by the ELC CASE NO. 362 OF 2017 Page 4 of 18 Ruling

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Court with the consent of the parties, thus the application is incompetent. 7. To buttress its averments, the Defendant relied on the following decisions: Kericho Technical Institute v Finmax Community Based Group [2025] KEHC 1121; Mayer v Akira Ranch (No.2) [1972] E.A 347, and Cyrus Komo v Hannah Nyambura Gikamu [2018] KECA 881. 8. On its part, the Plaintiff submits that the Defendant’s Preliminary Objection does not meet the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA as it calls upon the Court to make findings of fact regarding the reversal of the Decree, the applicability of Section 91 of the Civil Procedure Act and the effect of the Appellate judgement. 9. It also submits that its prayer for leave to change advocates is competent, grounded under Order 9 Rules 9 and 10 of the Civil Procedure Rules. Further, that the application is properly anchored in Section 91 of the Civil Procedure Act as ELC CASE NO. 362 OF 2017 Page 5 of 18 Ruling

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it seeks to recover sums paid under a Decree that has since been reversed and whose legal foundation has been extinguished by the decision of the Court of Appeal. It reiterates that this Court’s Decree of 27 th June 2017 was expressly conditional upon the judgement of the Court in ELC No. 545 of 2012, pursuant to which it paid substantial decretal sums to the Defendant but in Civil Appeal No. E011 of 2021, the said judgement was overturned thus the condition underpinning the Decree herein collapsed, thereby reversing the Decree itself thus the Defendant cannot in law /equity retain the said decretal sum. Further, that reliance on Section 67(2) of the Civil Procedure Act is immaterial as no Appeal has ever been lodged against the impugned Consent Judgement. 10. To buttress its averments, the Plaintiff relied on the following decisions: Gichere & another v Njoroge [2015] KEHC 11570 (KLR), RGH V GT [2025] KEHC 802 9 (KLR); Alfayo Saenyi Kasisi v Benson Kinyanya Wanyama ELC CASE NO. 362 OF 2017 Page 6 of 18 Ruling

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[2021] KEHC 9273(KLR) and Cyrus Komo v Hannah Nyamburah Gikamu [2018] KECA 881 (KLR). Analysis and Determination 11. Upon consideration of the instant Notice of Motion application including the supporting affidavit as well as Notice of Preliminary Objection and rivalling submissions, the issues for determination are whether the instant application flouts Order 9 of the Civil Procedure Rules and if it is barred under sections 67 (2) and 91 of the Civil Procedure Act. 12. The Defendant’s Preliminary Objection is based on the alleged inapplicability of Section 91 of the Civil Procedure Act to the Plaintiff’s application, on the basis that the Decree issued herein has not been varied. It argues that Section 67 (2) of the Civil Procedure Act bars Appeals on judgements entered by consent of parties and that the instant application flouts Order 9 of the Civil Procedure Rules. ELC CASE NO. 362 OF 2017 Page 7 of 18 Ruling

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13. In opposition, the Plaintiff contends that the Preliminary Objection is not merited as it does not raise pure points of law. 14. On raising of a preliminary objection, in the decisions of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] 1 EA and Oraro v Mbaja [2005] eKLR, the Court stated that: “A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed." ELC CASE NO. 362 OF 2017 Page 8 of 18 Ruling

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15. On whether the application flouts Order 9 Rule 9 of the Civil Procedure Rules, the Plaintiff seeks orders that the firm of messrs Conrad Law Advocates comes on record for it, in place of messrs CM Ngugi Rebiro & Company Advocates. It defends the applicability of Order 9 Rule 9 of the Civil Procedure Rules, given that judgement has been entered herein. Order 9 Rule 9 of the Civil Procedure Rules provides that: “Where there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the courta. upon an application with notice to all parties or b. upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person, as the case may be.” ELC CASE NO. 362 OF 2017 Page 9 of 18 Ruling

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16. In this instance, the new law firm seeks to come on record for the Plaintiff post the Consent judgment which had been entered herein. On a keen reading of Order 9 Rule 9 of the Civil Procedure Rules, it expects an Advocate that seeks to come on record for a party to seek consent from the erstwhile advocate or leave from Court to do so. Since the Applicant has sought leave to come on record and there is no objection to it, I will allow it. In my view I do not find that the Applicant has flouted the provisions of Order 9 Rule 9 of the Civil Procedure Rules as claimed by the Respondent. 17. The Plaintiff is seeking restitution of the sum of Kshs.29,791,745.00 and Kshs.3,000,00.00 that it paid to the Defendant in adherence to the Consent Judgement dated the 22nd June, 2017. It argues that in Civil Appeal No. E011 OF 2021, Kenya Urban Roads Authority & Another v Belgo Holdings Limited, the Court of Appeal overturned the judgement in ELC 545 of 2012 vide a judgement delivered on 9th May 2025, thereby invalidating the Defendant’s ELC CASE NO. 362 OF 2017 Page 10 of 18 Ruling

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ownership claim. It insists that the said Consent Judgement was conditional on outcome in ELC 545 of 2012. The Defendant argues that the Plaintiff is barred under sections 67 (2) and 91 of the Civil Procedure Act to seek for restitution of the monies paid. 18. For the avoidance of doubt, I wish to reproduce the Consent entered into by the parties herein on the 22nd June, 2017: ‘By consent of the parties 1) Rent payable for additional area will be Kshs. 607,500/= per month from 1/3/2017. 2) This rent will only be payable by the Plaintiff to the Defendant if the ELC Court holds in ELC 545/2012 that Belgo Holdings Limited is the owner of the entire land and that the road corridor has not been acquired by the Government. 3) If the rent becomes payable, the Plaintiff will pay interest on the allowed rent at 14%. 4) The suit is marked as settled. Each party will bear its own costs. ELC CASE NO. 362 OF 2017 Page 11 of 18 Ruling

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19. I note the Consent Judgement was indeed conditional on confirmation in ELC 545 of 2012, that the Defendant indeed owned the suit property. 20. On restitution, Section 91 of the Civil Procedure Act provides as follows; “(1) Where and in so far as a decree is varied or reversed, the court of first instance shall, on the application of the party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position they would have occupied but for such decree or such part thereof as has been varied or reversed; and for this purpose the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which ELC CASE NO. 362 OF 2017 Page 12 of 18 Ruling

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could be obtained by application under subsection (1).” 21. In Cyrus Komo v Hannah Nyambura Gikamu [2018] KECA 881 (KLR), the Court of Appeal stated that: “16. That provision is concerned with restoration to a party, on the variation or reversal of a decree, what has been lost to such party in consequence of such decree. The principle behind that provision is that on the reversal or variation of the decree, the law imposes an obligation on the party to the suit who received the benefit of the reversed decree to make restitution to the other party for what he has lost. [ See Mulla on the Code of Civil Procedure, 14th edition, volume 1 para 144 at page 731]. 22. Further, in Westmont Power (Kenya) Limited v Kenya Oil Company Limited [2014] KECA 454 (KLR) the Court of Appeal stated that: “And finally we find it unconscionable, unfair and unjust after all the foregoing omissions that the respondent still holds onto the money it was paid ELC CASE NO. 362 OF 2017 Page 13 of 18 Ruling

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in the decree that was reversed by this Court on 1st April, 2011. There is no justification to do this. It amounts to detriment to the applicant. As regards payment of interest, we grant orders that the same be paid on the decretal sum to be restituted at court rates with effect from 1 st May, 2003 as prayed. Mulla (supra) says of restitution under Section 144 of the Indian Civil Procedure Act, in similar wording as our Section 91, that: “The restitution to be made must be such as will, so far as may be, place the parties in the position which they would have occupied but for the decree appealed from or such part there of as has been varied “Interest is or reversed.” part of And normal further relief that: given in restitution.” 23. On whether the application is barred under Section 67(2) of the Civil Procedure Act, the Defendant contends that the said provision bars appeal on judgements entered by consent of parties thus the impugned consent cannot be appealed against. On its part, the Plaintiff contends that reliance on Section 67(2) of the Civil Procedure Act is immaterial as no ELC CASE NO. 362 OF 2017 Page 14 of 18 Ruling

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Appeal has ever been lodged against the impugned Consent. Section 67 (2) of the Civil Procedure Act provides as follows: “no appeal shall lie from a decree passed by the court with the consent of parties.” I note the Plaintiff is not seeking to Appeal against the impugned Consent as alleged by the Respondent but only seeks for restitution of monies paid as per the Consent Judgement. 24. The question we hence need to ponder is what happens where the consent was conditional and there is a Court Order altering the conditions therein. At this juncture the Court will refer to the grounds on setting aside of a consent. 25. In the case of Samuel Mbugua Ikumbu v Barclays Bank of Kenya Limited [2015] eKLR, the Court of Appeal in laying down the basis for setting aside a consent judgement or order stated as follow: “The law on variation of a consent judgment is now settled. The variation of a consent judgment can only be on grounds that would allow for a ELC CASE NO. 362 OF 2017 Page 15 of 18 Ruling

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contract to be vitiated. These grounds include but are not limited to fraud, collusion, illegality, mistake, and agreement being contrary to the policy of the court, absence of sufficient material facts and ignorance of material facts. Hancox JA (as he then was) in the case of Flora Wasike v. Destimo Wamboko (1982 -1988)1 KAR 625, said in his judgment at page 626 -"It is now settled law that a consent judgement or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out." See the decision of this Court in J.M. Mwakio v. Kenya Commercial Bank Ltd Civ. Apps 28 of 1982 and 69 of 1983, This Court in the case of Brooke Bond Liebig v. Mallya 1975 E.A. 266 held:- “A consent judgment may only be set aside for fraud collusion, or for any reason which would enable the court to set aside an agreement.” Emphasis mine 26. In relying on the legal provisions cited and associating myself with the decisions quoted, noting that the Consent ELC CASE NO. 362 OF 2017 Page 16 of 18 Ruling

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Judgement including resultant Decree were varied by operation of law, given that it was conditional upon the judgement of the Court in ELC No. 545 of 2012, which was overturned in Civil Appeal No. E011 of 2021, I opine that the Defendant cannot escape from it terms. Further, since the Defendant received monies from the Plaintiff knowing fully well that there were other factors/ grounds that remained to be fulfilled to confirm its ownership of the suit land, which formed the fulcrum of the dispute, in my view the Defendant cannot benefit from the said monies and is supposed to refund them. 27. In the foregoing, I find the Notice of Preliminary Objection unmerited and will disallow it. I however find the instant Notice of Motion application merited and will allow it in the following terms: i. Leave be and is hereby granted to the firm of M/S Conrad Law Advocates to come on record for the Plaintiff/Applicant in place of M/S CM Ngugi Rebiro & Company Advocates. ELC CASE NO. 362 OF 2017 Page 17 of 18 Ruling

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ii. That Orders of restitution and or refund be and is hereby granted for the Defendant to pay to the Plaintiff the sums kshs.29,791,745.00 and kshs.3,000,000.00 which are all sums paid to the Defendant by the Plaintiff in compliance with the consent order given on 22 nd June, 2017 by Hon. Lady Justice K. Bor. iii.That the sums aforesaid be paid with interest at court rates from 9th May, 2025 which is the date of the judgement in the Court of Appeal. iv. Each party to bear their own costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 6TH DAY OF OCTOBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Esmail holding brief for Ochieng Oduol SC for Respondent Mingo for Applicant Court Assistant: Joan ELC CASE NO. 362 OF 2017 Page 18 of 18 Ruling

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