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ELCOtherNyamira ELC No. 109 of 2021

Tinega (Suing as Legal Representative of the Estate of Nahason Tinega Kurura) v Mogeni & 2 others (Environment and Land Case 109 of 2021) [2025] KEELC 7969 (KLR)

Environment and Land Court
19 November 2025
2,368 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a request to extend a stay of execution, ruling it had no power to reopen matters already settled by a consent order.

What this practically means

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Executive summary

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This is a ruling by D. O. Ohungo, Judge of the Environment and Land Court at Nyamira, delivered on 19th November 2025 in Nyamira ELC No. 109 of 2021. Judgment in the suit had been delivered on 25th July 2024 by Mugo Kamau, J., in favour of the Plaintiff, declaring the Estate of Nahason Tinega Kurura the rightful owner of Title No. Settlement Fund Trustee/Ekerubo/26, ordering the Defendants to vacate, issuing a permanent injunction against them, dismissing their counterclaim, and awarding costs to the Plaintiff; the general damages prayer for trespass was disallowed for want of proof. On 16th October 2024 the parties recorded a consent granting the Defendants stay of execution pending an intended appeal to the Court of Appeal (Kisumu Civil Appeal No. E253 of 2024), on conditions including deposit of the title deed with the Deputy Registrar and vacation of the suit land by 16th October 2025. The Defendants then moved by Notice of Motion dated 27th August 2025 seeking extension or renewal of the stay, arguing the appeal remained unheard and eviction was imminent. The Plaintiff opposed, contending the court was functus officio. The court framed two issues: jurisdiction and whether the stay should be renewed. Applying the established jurisprudence on jurisdiction and the functus officio doctrine, the court held that the consent of 16th October 2024 conclusively determined the stay application, rendering it functus officio and depriving it of jurisdiction. In the alternative, it found no basis to vary the consent. The court struck out the application with costs to the Plaintiff, directing the Defendants to prosecute their appeal or seek stay in the Court of Appeal.

Questions the Court framed

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

  1. 1.Whether the court has jurisdiction to hear and determine the Notice of Motion dated 27th August 2025
  2. 2.If so, whether the stay order of 16th October 2024 should be renewed or extended

Key legal issues

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01

Whether the court had jurisdiction to extend or renew the stay order of 16th October 2024

Holding

The court had no jurisdiction; it was functus officio because the consent of 16th October 2024 conclusively determined the Defendants' stay application.

Reasoning

The Defendants had sought stay of execution in a Notice of Motion dated 7th October 2024. That application was compromised through the consent of 16th October 2024, which granted stay on agreed conditions. Once the consent was adopted, the court had performed all its duties regarding the stay question and became functus officio as to the nature, duration and conditions of stay. Any fresh or extended stay must be sought in the Court of Appeal.

p. 5
02

Whether, in the alternative, the consent order should be varied

Holding

Even assuming jurisdiction, the court would have refused to vary the consent, since the vacation date was expressly agreed.

Reasoning

The court stated that even if it had found jurisdiction, it would still have dismissed the application because the period within which the Defendants were to vacate was expressly agreed by consent, and no valid reason was shown to vary or set aside the consent.

p. 6

Legal principles established

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  • A court becomes functus officio once a consent order conclusively determines an application before it, and cannot thereafter revive, extend or vary the order so made.
  • Proceedings initiated or conducted without jurisdiction are of no consequence.
  • A court will not readily vary a consent order whose terms were expressly agreed by the parties.

Court orders

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  1. 1.Notice of Motion dated 27th August 2025 struck out with costs to the Plaintiff
  2. 2.Costs of the application awarded to the Plaintiff

The bench

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

majority

Wrote the judgment

On appeal from
Court of Appeal
Kisumu Civil Appeal No. E253 of 2024
Jurisdiction invoked
Environment and Land Court Act - the court found it lacked jurisdiction over the Notice of Motion dated 27th August 2025, being functus officio after the consent of 16th October 2024

Relief refused

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Extension/renewal of the stay of execution orders of 16th October 2024 pending the intended appeal

The court was functus officio, having conclusively determined the stay application by consent on 16th October 2024, and therefore lacked jurisdiction.

p. 5

Stay of execution of the judgment and decree pending Kisumu Civil Appeal No. E253 of 2024

Struck out for want of jurisdiction; the Defendants should prosecute the appeal or pursue stay in the Court of Appeal.

p. 5

Alternative injunctive relief restraining interference with the Defendants' occupation of 20 acres

The entire application was struck out for want of jurisdiction.

p. 6

Costs

Notice of Motion dated 27th August 2025 struck out with costs to the Plaintiff.

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.

In the end, owing to lack of jurisdiction, I strike out Notice of Motion dated 27th August 2025 with costs to the Plaintifi.
p. 6Final orders - striking out for want of jurisdiction
The court became functus oficio as regards the nature and duration of stay orders that it could make and the conditions of or security for such an order.
p. 5Functus officio following a consent order
The Defendants should prosecute their appeal in the Court of Appeal or pursue a fresh order of stay there.
p. 5Proper forum for stay pending appeal
A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself.
p. 4Centrality of jurisdiction (as quoted from Phoenix of E.A. Assurance)

Issues in the judgment

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minor

Defendants' Notice of Appeal is dated 6th August 2025 yet the application (dated 27th August 2025) and the judgment appealed against date from 2024, and the appeal is numbered Kisumu Civil Appeal No. E253 of 2024 - an apparent internal inconsistency in dates.

minor

The consent order requires the Defendants to vacate on or before 16/10/2025, described as imminent at filing of the application of 27th August 2025, yet judgment recites the Plaintifi had already filed post-judgment eviction applications.

minor

The parties' names and descriptions are not fully set out in the extract of the judgment/ruling provided; only the Plaintiff and Defendants appear as roles.

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, "Tinega (Suing as Legal Representative of the Estate of Nahason Tinega Kurura) v Mogeni & 2 others (Environment and Land Case 109 of 2021) [2025] KEELC 7969 (KLR)", Case Analysis (2025). Nyamira ELC No. 109 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7969/eng@2025-11-19

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