Makori & 249 others v Commissioner of Lands & 11 others (Environment and Land Petition 12 of 2017) [2026] KEELC 2076 (KLR)
The bottom line
#A Kenyan court struck out an eviction application because the case it was filed in had already been dismissed — you cannot revive a dead case with a new application.
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 Applicants can file an application seeking eviction orders in a matter whose Petition was dismissed on 28th November, 2023, i.e. in a non-existent matter
- 2.Whether the court can consider the merits of the eviction application notwithstanding the dismissal of the Petition
Key legal issues
#Whether a court can entertain an application in a matter that has been finally dismissed for want of jurisdiction
It cannot. The dismissal of the Petition on 28th November, 2023 terminated the proceedings; the court is functus officio and the application was filed in a non-existent matter.
The court had earlier upheld a Preliminary Objection and dismissed the Petition with costs, 'downing its tools' for want of jurisdiction. Relying on the functus officio doctrine as articulated in Telkom Kenya Limited v John Ochanda, once a court delivers a final decision it has no power to re-examine the matter or grant further orders save for clerical errors or statutory exceptions. The proceedings were closed and the petition ceased to exist, so the eviction application could not be entertained.
Whether eviction orders can issue under the Land Act where title and ownership of the land is contested
No. The summary eviction procedure under sections 152C-152F of the Land Act presupposes no dispute on ownership; where ownership is disputed, a formal suit is advisable.
Applying Julius L Marten v Caleb Arap Rotich, the court noted that eviction orders have far-reaching implications and any person affected is entitled to be heard on the merits. Section 152E relating to private land envisages no dispute on ownership and unlawful occupation. The Applicants had not demonstrated that the Petitioners' claims to the land were resolved in the appropriate forum, so the summary procedure was unsuitable.
Legal principles established
#- Once a court makes a final determination on its jurisdiction and dismisses or strikes out a cause, it becomes functus officio and cannot entertain further applications in the same matter save for clerical errors or statutory exceptions
- Where ownership of land is disputed, the summary eviction procedure under section 152F of the Land Act is unsuitable and a formal suit is advisable
Court orders
#- 1.The 4th and 6th Interested Parties' Notice of Motion dated 29th January, 2026 struck out
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Land Act (Cap. 280), Sections 152A and 152E, and Order 51 of the Civil Procedure Rules; court found it had no jurisdiction having earlier dismissed the Petition
Relief refused
#Eviction of the Petitioners from KJD/OLKIRAMATIAN/14 and KAJIADO/OLKIRAMATIAN/22, 23 and 24 with vacant possession to the Applicants
The court's jurisdiction was extinguished when the Petition was dismissed on 28th November, 2023; the court is functus officio and cannot entertain a fresh application in a non-existent matter, and ownership of the land remains contested
Orders for Benwill Auctioneers to execute eviction and for the OCS Magadi Police Station to provide security
Ancillary to the eviction prayers which could not be granted in the dismissed matter
Costs
No orders as to costs - the Motion was struck out 'but with no orders as to costs'
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 court's power to intervene in this matter was definitively extinguished on 28th November, 2023, when this court delivered a Ruling upholding a Preliminary Objection and dismissing the Petition with costs.
Once a court makes a final determination on its jurisdiction and dismisses or strikes out a cause, it becomes functus oficio.
The proceedings are closed. You cannot put something on nothing.
Consequently, I hereby strike out the 4th and 6th Interested Parties' Notice of Motion dated 29 January, 2026 but with no orders as to costs.
Issues in the judgment
#The judgment states the supporting affidavit was 'sworn on 29th January, 2025' while the Notice of Motion it supports is 'dated 29th January, 2026' - an internal inconsistency in dates
The judgment's opening words 'Introduction 1.' are followed immediately by the case number being omitted; the petition number is never stated anywhere in the judgment, so the matter cannot be precisely identified from the text
The judgment misdescribes the 6th Interested Party: the Motion seeks vacant possession for 'Jackson Lapot Ntumana, Patrick Parandai Ntumana, Olontasati Ntumana and Peter Ntaampi Ole Ntumana' but the court later refers to ownership as remaining contested without clarifying whether these individuals or the 4th Interested Party hold the contested titles
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makori & 249 others v Commissioner of Lands & 11 others (Environment and Land Petition 12 of 2017) [2026] KEELC 2076 (KLR)", Case Analysis (2026). Petition number not stated in the judgment (Kajiado Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2076/eng@2026-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.