Lagat v Lagat (Enviromental and Land Originating Summons 182 of 2017) [2024] KEELC 1136 (KLR)
The bottom line
#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 court should grant orders for provision of security by police during the eviction exercise
- 2.Whether the court is functus officio and unable to grant the security orders
- 3.Whether an eviction order had been sought and granted in the substantive suit
- 4.Whether the Judgement Debtor met the threshold for grant of stay of execution pending appeal
Key legal issues
#Whether the court was functus officio to entertain the application for police security during eviction
The court was not functus officio because it was not asked to revisit the judgment on merits, only to enforce it by providing security during eviction
The functus officio doctrine bars a court from revisiting its judgment on the merits or exercising judicial power over the same matter, save as provided by law. Ordering police security during execution of a decree is an incident of enforcement, not a merits review. The Respondent admitted forcefully entering the property and stationing goons who pelted the applicant with stones, demonstrating a real risk of breach of peace justifying security.
Whether eviction was being sought for the first time in the security application
Eviction had been sought and granted in the amended plaint dated 20.4.2017, so the respondent could not argue it was new relief
The court held that the relief granted in the amended plaint included eviction, which succeeded on 20.3.2023. The security application merely sought police assistance to execute that decree, not a fresh eviction order. The contention that an eviction order must be sought in a substantive suit was answered by pointing to the original suit in which eviction was pleaded and granted.
Whether the Judgement Debtor satisfied the Order 42 Rule 6 conditions for stay pending appeal
The stay application failed for unexplained delay of almost nine months and lack of demonstrated substantial loss; security was therefore not addressed
Order 42 Rule 6 requires filing without unreasonable delay, demonstration of substantial loss, and security. The judgment was delivered on 20.3.2023 and the application filed on 11.12.2023, an unexplained delay of almost nine months, apparently filed to counter the Decree Holder's application. Substantial loss was not demonstrated: the applicant built houses on land purchased from a third party, the respondent undertook not to dispose of the property, and if the appeal succeeds the applicant can simply return.
Legal principles established
#- A court that has passed judgment becomes functus officio and cannot revisit the judgment on merits save as provided by law
- A court directing execution of its decree is not revisiting the merits, and may order police security for an eviction where a breach of peace is demonstrated
- Demonstration of substantial loss is the cornerstone for grant of stay under Order 42 Rule 6
- A dismissal of an originating summons together with orders adverse to the applicant in the main suit constitutes orders adverse to him, entitling him to seek stay
Court orders
#- 1.Application dated 14.11.2023 allowed in terms of prayers 2 and 3: the Officer in Charge of Moi's Bridge Police Station to provide security during physical eviction of the plaintiff and family from LR. No. Moi's Bridge Block 2 (Tuiyobei)/72 and demolition of any structures illegally erected thereon
- 2.Plaintiff/Respondent to bear the costs of the 14.11.2023 application (prayer 3 allowed)
- 3.Application dated 11.12.2023 (stay pending appeal) dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay pending appeal); court's power to ensure compliance with its own decree
Relief refused
#Stay of execution of the judgment of 20th March 2023 pending intended appeal
Application filed after almost nine months of unexplained delay and failure to demonstrate substantial loss
Any other relief sought in the stay application
Application found devoid of merit and dismissed with costs
Costs
Costs of the 14.11.2023 application awarded to the Decree Holder/Applicant (prayer 3 allowed); costs of the 11.12.2023 application awarded to the Respondent
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.
From the above analysis, I find that the applicant's application is well merited. The same is allowed in terms of prayer 2 and 3.
This court is not being asked to revisit the judgment on merits. The court is only being asked to order that security be provided by the police during the eviction.
Demonstration of substantial loss is the cornerstone for grant of stay. If one does not demonstrate substantial loss as in the present case, no stay can be granted.
This delay of almost nine months has not been explained. I find that this delay is unreasonable in the circumstances.
From the above analysis, I find that the Applicant's application is devoid of merit. The same is dismissed with costs to the Respondent.
Issues in the judgment
#The judgment refers to the eviction-seeking party inconsistently as Applicant/Decree Holder and Plaintiff/Respondent, and to the opposing party as Judgement Debtor and Respondent, depending on which application is under discussion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lagat v Lagat (Enviromental and Land Originating Summons 182 of 2017) [2024] KEELC 1136 (KLR)", Case Analysis (2024). ELC NO. 182 OF 2017 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1136/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.