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ELCPartially AllowedNot stated in judgment

Kabera v Mwangi & 3 others (Environment & Land Case 241 of 2021) [2024] KEELC 7187 (KLR)

Environment and Land Court
29 October 2024
1,056 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court ordered a land buyer evicted for ignoring a 2022 judgment, confirming that courts can enforce their own decisions despite the functus officio rule.

What this practically means

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Executive summary

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The 2nd Defendant, John Njuguna Njuku, moved the court by Notice of Motion dated 1/02/2024 seeking an order compelling the plaintifi to grant vacant possession of parcel Juja/Juja East Block 1/253, an eviction order with demolition of structures, police assistance from the OCS Witeithie Police Station, and costs of eviction. The application followed a judgment delivered on 17/05/2022 which declared a 1995 sale agreement void for want of Land Control Board consent, permanently restrained the plaintifi from interfering with the 2nd, 3rd and 4th defendants' quiet possession, ordered the plaintifi to vacate within 30 days, and left the defendants at liberty to apply for eviction in default. More than a year and a half later the plaintifi had neither vacated nor filed an appeal or review. The 1st defendant opposed on the ground that the court had become functus officio. Relying on Menginya Salim Murgani v Kenya Revenue Authority, the court accepted the functus officio principle but held that enforcement of the decree through eviction orders under Order 22 Rule 29(1) of the Civil Procedure Rules was a remedy provided by law and was expressly contemplated by the earlier judgment. The application was allowed: an eviction order and demolition of structures was issued, the OCS Witeithie Police Station to oversee enforcement, and the plaintifi ordered to pay the costs of the eviction exercise. Judgment delivered virtually at Nairobi on 29 October 2024 by Mogeni J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an eviction order should issue against the plaintifi in respect to the land parcel number Juja/Juja East Block 1/253

Key legal issues

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01

Whether the court, having become functus officio upon delivery of judgment, could still issue eviction orders

Holding

Yes - the functus officio doctrine does not bar execution; the proper remedy is to seek eviction orders under Order 22 Rule 29(1) of the Civil Procedure Rules, which the judgment itself permitted.

Reasoning

The 1st defendant argued the court was functus officio. The court, relying on Menginya Salim Murgani v Kenya Revenue Authority, accepted that it could not revisit the judgment on the merits, but held that enforcement of the decree for vacant possession is a lawful exception. Order 22 Rule 29(1) authorises removal of any person bound by the decree who refuses to vacate, and the prior judgment expressly left the defendants at liberty to apply for eviction.

p. 3
02

Whether the plaintifi had complied with the judgment of 17/05/2022

Holding

No - the plaintifi had not vacated the suit land more than one and a half years after judgment, with no appeal or review filed.

Reasoning

The court noted the judgment of 17/05/2022 granted the plaintifi 30 days to vacate. No appeal or review was filed. Continued occupation constituted non-compliance, justifying an eviction order with police oversight and demolition of structures, including the 1st defendant's semi-permanent structure.

p. 2

Legal principles established

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  • A court becomes functus officio after passing judgment and cannot revisit the judgment on merits save as provided by law; enforcement of a decree for delivery of immovable property lies under Order 22 Rule 29(1).

Court orders

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  1. 1.An eviction order issued directed to the plaintifi, his servants, agents and or any other persons in occupation of parcel Juja/Juja East Block 1/253, and demolition of any structures on the suit premises
  2. 2.The OCS Witeithie Police Station to oversee the enforcement of the eviction order
  3. 3.The plaintifi to pay the costs of the eviction exercise that may be incurred by the applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 22 Rule 29(1) of the Civil Procedure Rules (execution of decree for delivery of immovable property)

Relief refused

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Costs of the application as a separate award

The judgment did not separately award costs of the application beyond the eviction costs; the application was allowed in its substance

p. 3

Costs

The plaintifi is ordered to pay the costs of the eviction exercise that may be incurred by the applicant; no separate costs order for the application is recorded.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That an eviction order be and is hereby issued directed to the plaintifi, his servants, agents and or any other persons whatsoever in occupation of the property and demolition of any structures that are on the suit premises known as parcel of land title number Juja/Juja East Block 1/253
p. 3final orders - eviction and demolition
That the OCS Witeithie Police Station do oversee the enforcement of the said eviction order
p. 3final orders - police oversight
That the plaintifi is hereby ordered to pay the costs of the eviction exercise that may be incurred by the applicant.
p. 3final orders - costs of eviction
It is a general principle of law that a Court after passing Judgment, becomes functus oficio and cannot revisit the Judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law.
p. 3functus officio doctrine
Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
p. 2Order 22 Rule 29(1) execution of decree

Issues in the judgment

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minor

Counsel for the Applicant is recorded as 'Ms. Wangu Kariuki for Applicant/Respondent' while the movant was the 2nd Defendant/Applicant, creating role inconsistency in the record

minor

The application is dated inconsistently as '1/02/2024' and '01/02/2024' within the same judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kabera v Mwangi & 3 others (Environment & Land Case 241 of 2021) [2024] KEELC 7187 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7187/eng@2024-10-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.