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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 8407 (KLR)

Cherogony v Rono & 10 others (Environment and Land Case 212 of 2013) [2025] KEELC 8407 (KLR)

Environment and Land Court of Kenya
3 December 2025
AOA. O. Ombwayo
2,594 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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David Mbugua Kahuria and John Ndungu, the applicants, moved the court by application dated 8 October 2025 seeking leave for Nakuru Community Justice Center, Kituo Cha Sheria – Nakuru Branch to come on record for them after judgment under Order 9 Rule 9 of the Civil Procedure Rules, and further seeking an order of eviction of the respondent, Mathew Chebon Cherogony, from Nakuru/Municipality Block 29/1130 (Ronda) and Block 29/1048 (Ronda), with OCS supervision. The application followed a judgment of 23 March 2025 dismissing the respondent's adverse possession Originating Summons for failure to prove twelve years' possession. The applicants, relying on their Certificates of Title and Sections 24, 25 and 26 of the Land Registration Act, argued that the respondent's continued occupation was trespass. The respondent opposed, contending there was no counterclaim for eviction, no executable order, and that the court had become functus officio after delivering judgment. The court allowed the unopposed prayer for leave for new counsel but declined the eviction orders. It held that the judgment had issued no eviction order capable of execution; a respondent to an adverse possession suit should file a counterclaim for eviction while the suit is pending; and, having delivered final judgment, the court is functus officio except for execution of the decree. Eviction must be pursued in a separate suit under Section 152E of the Land Act, 2012, with the requisite three-month statutory notice. The eviction application was dismissed with costs.

Key legal issues

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01

Whether leave should issue for new counsel to come on record after judgment

Holding

Leave granted; the application was unopposed and had merit under Order 9 Rule 9.

Reasoning

The court noted that the applicants sought leave for Nakuru Community Justice Center, Kituo Cha Sheria – Nakuru Branch to replace their former advocates after judgment pursuant to Order 9 Rule 9 of the Civil Procedure Rules. The respondent did not oppose this prayer, and the court found it merited, so it was allowed.

p. 4
02

Whether the court can grant an eviction order post-judgment where no counterclaim for eviction was filed

Holding

No. The judgment dismissed the adverse possession suit and contained no executable eviction order; the court is functus officio on matters arising from its judgment other than execution of the decree.

Reasoning

The judgment of 23 March 2025 dismissed the respondent's adverse possession Originating Summons for failure to prove 12 years' possession. It issued no eviction order capable of execution. The applicants, having filed no counterclaim for eviction while the suit was pending, cannot obtain substantive eviction relief by application; the court, having delivered final judgment, is functus officio. The proper course is a separate suit under Section 152E of the Land Act.

p. 5
03

Whether granting eviction under the application would be procedurally proper

Holding

No; it would re-open the concluded case, and eviction must follow the notice regime in Section 152E of the Land Act, 2012.

Reasoning

The court held that an eviction order at this stage would untidy the suit and amount to re-opening the case for substantive orders. Section 152E of the Land Act requires a notice of not less than three months, in writing, published in at least two daily newspapers and displayed at strategic locations, specifying removal conditions and served on the deputy county commissioner and police, before eviction from private land.

p. 6

Legal principles established

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  • A respondent to an adverse possession suit must file a counterclaim for eviction while the suit is subsisting; after judgment the court is functus officio and cannot grant substantive eviction orders by way of application
  • Functus officio is an expression of the principle of finality preventing re-opening of decided matters
  • Eviction from private land requires prior notice under Section 152E of the Land Act, 2012, including publication and service requirements

Court orders

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  1. 1.Leave granted to Nakuru Community Justice Center, Kituo Cha Sheria – Nakuru Branch C/O Joseph Kimotho to come on record for the 1st and 2nd Applicants after judgment
  2. 2.The application for an order of eviction dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Land Registration ActSections 24(a), 25(1), 26(1)
  • Land ActSection 152E

Cases cited (5)

  • Sisto Wambuqu versus Kamau Niuquna
    (1983) KECA 69 KLR
  • Walli's Cayton Bay Holiday Camp Ltd versus Shell-Mex & BP Ltd
    (1975) QB 94
  • Raila Odinga & Others vs. IEBC & Others
    [2013] eKLR
  • Jersey Evening Post Limited vs Al Thani
    (2002) JLR 542
  • Telkom Kenya Limited V John Ochanda (Suing on His Own Behalf and On Behalf of 996 Former Employees Of Telkom Kenya Limited)
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction; application under Order 9 Rule 9 of the Civil Procedure Rules following the court's judgment of 23 March 2025 dismissing an adverse possession suit

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, "Cherogony v Rono & 10 others (Environment and Land Case 212 of 2013) [2025] KEELC 8407 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8407/eng@2025-12-03

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