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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction to hear and determine the Notice of Motion dated 27th August 2025
- 2.If so, whether the stay order of 16th October 2024 should be renewed or extended
Key legal issues
#Whether the court had jurisdiction to extend or renew the stay order of 16th October 2024
The court had no jurisdiction; it was functus officio because the consent of 16th October 2024 conclusively determined the Defendants' stay application.
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.
Whether, in the alternative, the consent order should be varied
Even assuming jurisdiction, the court would have refused to vary the consent, since the vacation date was expressly agreed.
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.
Legal principles established
#- 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
#- 1.Notice of Motion dated 27th August 2025 struck out with costs to the Plaintiff
- 2.Costs of the application awarded to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
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.
Alternative injunctive relief restraining interference with the Defendants' occupation of 20 acres
The entire application was struck out for want of jurisdiction.
Costs
Notice of Motion dated 27th August 2025 struck out with costs to the Plaintiff.
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.
In the end, owing to lack of jurisdiction, I strike out Notice of Motion dated 27th August 2025 with costs to the Plaintifi.
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.
The Defendants should prosecute their appeal in the Court of Appeal or pursue a fresh order of stay there.
A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself.
Issues in the judgment
#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.
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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.