Mudigo v Agui & another (Environment and Land Miscellaneous Application E016 of 2025) [2025] KEELC 7468 (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 applicant is entitled to orders directing the OCS Kobujoi Police Station to effect the eviction order dated 26th November 2020
- 2.Whether the application is res judicata, frivolous, vexatious and an abuse of the court process
- 3.Whether execution of the substantive order of eviction can be issued through a miscellaneous application
Key legal issues
#Whether eviction can be enforced through a miscellaneous application
No; execution of the substantive order of eviction cannot issue through the miscellaneous application and the application is misconceived and inept
The court acknowledged that the applicant, as judgment creditor, is entitled to the fruits of his judgment. However, the substantive order of eviction must be executed through the proper procedural mechanism, namely section 34 of the Civil Procedure Act, as explained in Nairobi West Hospital Ltd v Joseph Karina & another (2018) eKLR. The present miscellaneous application was an improper vehicle for that relief and was therefore struck out.
Whether the application is res judicata as contended by the respondents
The respondents argued res judicata on the strength of section 7 of the Civil Procedure Act and prior determination of the dispute in ELCC No. 20 of 2022 and the ruling of 7th April 2025; the court struck the application out on procedural grounds
The court bore in mind the res judicata principle anchored on section 7 of the Civil Procedure Act, which bars a court from trying a matter directly and substantially in issue in a former suit between the same parties that has been heard and finally decided. Counsel relied on Mburu Kinyua v Gachini Tuli (1978) KLR 69 and IEBC v Maina Kiai & 5 others (2017) eKLR. The dispositive ground, however, was the improper procedural vehicle.
Legal principles established
#- A litigant is entitled to the fruits of a judgment, but execution of a substantive order of eviction cannot be issued through a miscellaneous application; the proper route is section 34 of the Civil Procedure Act
- Res judicata under section 7 of the Civil Procedure Act bars a court from trying any suit or issue directly and substantially in issue in a former suit between the same parties that has been heard and finally decided
Court orders
#- 1.The application dated 29th April 2025 is struck out
- 2.Costs of the application to the respondent, taking into account the proviso to section 27(1) of the Civil Procedure Act and the Court of Appeal decision in Rai v Rai (2014) eKLR
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Enforcement jurisdiction in respect of the decree in Eldoret ELCC No. 259 of 2013; sections 34 and 27(1) of the Civil Procedure Act (Chapter 21, Laws of Kenya)
Relief refused
#Direction to the OCS Kobujoi Police Station to effect the eviction order dated 26th November 2020
Although the applicant is entitled to the fruits of the judgment, execution of the substantive order of eviction cannot be issued through the present miscellaneous application; the application is misconceived and inept
Costs
Application struck out with costs to the respondent, taking into account the proviso to section 27(1) of the Civil Procedure Act and Rai v Rai (2014) eKLR
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.
The applicant is entitled to fruits of the judgment. However, execution of the substantive order of eviction cannot be issued through the present miscellaneous application; see Nairobi West Hospital Ltd v Joseph Karina & another (2018) eKLR and section 34 of the Civil Procedure Act Chapter 21 Laws of Kenya.
It is thus, the considered view of this court that the application is misconceived and inept.
A fortiori, the application dated 29th April 2025, be and is hereby struck out with costs to the respondent taking into account the proviso to section 27 (1) of the Civil Procedure Act Chapter 21 Laws of Kenya and the Court of Appeal decision in the case of Rai v Rai (2014) eKLR.
Issues in the judgment
#Internal inconsistency in the date of judgment in the underlying suit: described as delivered on 5th May 2020 in the application and by the court, but stated as 14th May 2020 in the applicant's further affidavit
Case number discrepancy: decree described as from Eldoret ELCC No. 259 of 2013, while respondents' submissions refer to ELCC No. 20 of 2022 (Formerly Eldoret ELC Case No. 259 of 2012)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mudigo v Agui & another (Environment and Land Miscellaneous Application E016 of 2025) [2025] KEELC 7468 (KLR)", Case Analysis (2025). Notice of Motion dated 29th April 2025 (Eldoret ELCC No. 259 of 2013 decree enforcement). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7468/eng@2025-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.