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ELCPartially AllowedNot expressly stated in the judgment (appeal against ruling of 29th January 2025 in Kakamega ELC Case No. 104 of 2018)

Oyende v Odera (Environment and Land Appeal E012 of 2025) [2026] KEELC 1598 (KLR)

Environment and Land Court
11 March 2026
3,991 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan land court set aside a judgment entered against a dead man because no one had replaced him in the case, and sent the dispute for a fresh hearing.

What this practically means

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Executive summary

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This is an appeal to the Environment and Land Court at Kakamega, decided by A. Nyukuri J on 11th March 2026, against a ruling by Hon. Z.J. Nyakundi (SPM) of 29th January 2025 dismissing an application dated 21st August 2024 that sought review and setting aside of orders of 10th July 2024 and a judgment of 30th July 2024 in Kakamega ELC Case No. 104 of 2018 (a claim for declaratory and eviction orders over parcel S/WANGA/BUNGASI/182). The 1st defendant died on 15th May 2024 before judgment; the applicant (Mary Oyende) had been joined as 2nd defendant and restrained from burying the deceased on the suit property by the ruling of 10th July 2024. The appellant argued that judgment entered against a deceased person without substitution was a nullity and that she was joined and injuncted without being heard; the respondent countered that no subsisting orders existed, that the appellant lacked locus standi, and that the trial court was functus officio. The High Court held that section 80 of the Civil Procedure Act and Order 45 Rule 1 confer review jurisdiction, so the trial court's functus officio finding was erroneous. However, reviewing the merits, the court found no basis for review of the 10th July 2024 orders, holding the joinder valid and the injunction in force. It found error apparent on the face of the judgment of 30th July 2024: it was entered against an unrepresented deceased estate, determined an unpleaded burial issue, and ordered eviction upon an anticipated survey without determining encroachment. The appeal was partially allowed: the judgment of 30th July 2024 was set aside, the 10th July 2024 orders remain in force, the lower court file was remitted to a different judicial officer, and each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the trial court was right in dismissing the application dated 21st August 2024 on the ground that the court was functus officio
  2. 2.Whether there was an error apparent on the face of the record in respect of the ruling of 10th July 2024 and the judgment of 30th July 2024 warranting review

Key legal issues

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01

Whether the trial court was functus officio after delivering judgment

Holding

No. Section 80 of the Civil Procedure Act and Order 45 Rule 1 confer jurisdiction on a court to review its own decree or order, so the finding of functus officio was erroneous

Reasoning

The court set out section 80 of the Civil Procedure Act and Order 45 Rule 1, which permit an aggrieved person to apply for review to the court that passed the decree or made the order. The doctrine of functus officio applies save where the law allows review or correction. Since review jurisdiction exists by statute, a court does not become functus officio for purposes of a review application; it must entertain it on the merits.

p. 16
02

Whether the judgment of 30th July 2024 contained an error apparent on the face of the record

Holding

Yes - judgment was entered against a deceased defendant without substitution, the burial issue was not raised in the pleadings, and eviction was ordered on an anticipated survey without determining encroachment

Reasoning

The defendant died on 15th May 2024 before judgment; the appellant joined as 2nd defendant was not his legal representative, so the estate was unrepresented when judgment was entered. Further, the burial issue determined was never pleaded, and the trial court ordered eviction upon a future survey without itself ascertaining whether encroachment occurred. Each constituted an error apparent on the face of the record.

p. 19
03

Whether there was basis for review of the orders of 10th July 2024 (joinder and injunction)

Holding

No. The joinder of the appellant as 2nd defendant was an addition, not a substitution, was done with reasons, and she was heard through grounds of opposition

Reasoning

The trial court joined Mary Oyende because she intended to bury the deceased on the suit property, making her automatically a party; she filed grounds of opposition dated 31st May 2024, so fair hearing was not denied. Her joinder did not substitute the deceased's estate. No error apparent on the face of the record or other sufficient cause was shown, and her remedy was appeal, not review.

p. 18

Legal principles established

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  • A court that has delivered judgment is not functus officio in respect of an application for review, because section 80 of the Civil Procedure Act confers jurisdiction to review its own decree or order
  • Judgment cannot be entered against a deceased defendant who has not been substituted by a legal representative; doing so is an error apparent on the face of the record

Court orders

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  1. 1.The appeal partially allowed
  2. 2.The trial court's judgment of 30th July 2024 set aside
  3. 3.The orders dated 10th July 2024 by the trial court remain in force pending hearing and determination of Kakamega MCELC Case No. 104 of 2018
  4. 4.Kakamega MCELC Case No. 104 of 2018 to be placed before another judicial officer other than the Magistrate who made the judgment of 30th July 2024, for determination
  5. 5.Each party shall bear its own costs

The bench

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

majority

Wrote the judgment

On appeal from
Senior Principal Magistrate's Court (Environment and Land), Kakamega
Kakamega ELC Case No. 104 of 2018
Jurisdiction invoked
First appeal from the trial court to the Environment and Land Court; review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules

Relief refused

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Review of the orders of 10th July 2024

The appellant did not demonstrate any error apparent on the face of the record or other sufficient cause in respect of her joinder and the injunction; her remedy was appeal

p. 18

Costs

Each party shall bear its own costs

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 view of the provisions of section 80 of the Civil Procedure Act that grants court the jurisdiction to grant review, the finding by the trial court that it is functus officio is erroneous and lacks justification. A court has jurisdiction to exercise its power of review.
p. 16Functus officio and statutory jurisdiction of review
Therefore, in so far as the trial court entered judgment against a deceased defendant before substitution, there was an error apparent on the face of the judgment.
p. 19Judgment against deceased person before substitution
I agree with the appellant that the issue of burial of the deceased defendant was not an issue raised in the pleadings making it an issue in the judgment was clearly an error on the face of the record.
p. 19Error apparent on face of record - unpleaded issue
The trial court’s judgment of 30th July 2024 is hereby set aside. For avoidance of doubt, the lower court judgment having been set aside, the orders dated 10th July 2024 by the trial court, remain in force, pending the hearing and determination of Kakamega MCELC CASE NO. 104 OF 2018.
p. 20Final orders
The lower court matter, being Kakamega MCELC CASE NO. 104 OF 2018, shall be placed before another judicial officer other than the Honourable Magistrate who made the judgment of 30th July 2024, for determination.
p. 20Final orders - remission for fresh determination
In view of the circumstances obtaining in this matter, I order that each party shall bear its own costs.
p. 21Costs

Issues in the judgment

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minor

The judgment states the application under review as dated 21st August 2025 in one passage, while elsewhere it is consistently dated 21st August 2024

minor

The judgment is dated 11th March 2026, more than a year after the ruling appealed from (29th January 2025); the date appears unusual but is as printed

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, "Oyende v Odera (Environment and Land Appeal E012 of 2025) [2026] KEELC 1598 (KLR)", Case Analysis (2026). Not expressly stated in the judgment (appeal against ruling of 29th January 2025 in Kakamega ELC Case No. 104 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1598/eng@2026-03-11

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