Odhiambo v Ndiri & 2 others (Environment and Land Case 4 of 2023) [2026] KEELC 3237 (KLR)
The bottom line
#A Siaya court cleared the way to evict occupants who had resisted a land judgment for nearly two decades, ruling the judge could still enforce his own decree.
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 is functus officio
- 2.If the answer to the above is 'No' whether the orders sought in the application should issue
- 3.Who bears the costs of the application?
Key legal issues
#Whether the court is functus officio and lacks jurisdiction to entertain the application
The court is not functus officio; the application seeks execution of an unperfected decree, not a review or merit re-engagement of the judgment
Relying on the Supreme Court in Raila Odinga and the Court of Appeal in Telkom Kenya, the court held that functus officio bars merit-based decisional re-engagement after final judgment. However, the present application is a post-judgment matter seeking warrants of eviction to enforce the decree of 18th October 2006. Since the decree has not yet been perfected or achieved by the decree holder, the doctrine does not apply and the objection fails.
Whether the court seized of the transferred file has jurisdiction to issue the eviction warrants rather than the Kisumu High Court
The ELC Siaya has jurisdiction; the file was administratively transferred and the respondents, having participated in proceedings before the ELC, cannot approbate and reprobate
The proceedings commenced in the High Court at Kisumu and were transferred to the ELC, remaining active post-judgment. Consistent with the Supreme Court's decision in R v Chengo, the ELC is the proper court for the dispute. The respondents' late objection was rejected because they had continued to participate in and initiate applications before the ELC court and cannot approbate and reprobate at the same time.
Whether warrants of eviction should issue without a Notice to Show Cause and without the statutory 90 days' notice under the Land Act
The Land Act notice provisions do not apply where a decree exists; and the NTSC requirement under Order 22 Rule 18(1)(a) was dispensed with because issuing it would cause unreasonable delay and defeat the ends of justice
Sections 152A, 152E and 152F of the Land Act address eviction of persons in unlawful occupation and operate only absent a judgment or decree; here the decree was upheld on appeal. Although an NTSC is normally required under Order 22 Rule 18(1)(a), Rule 18(2) permits its dispensation. Given litigation since 1992 and the decree holder's inability to enjoy the fruits of his judgment, further delay would defeat justice and the objectives of the Civil Procedure Act and the Environment and Land Court Act.
Legal principles established
#- The functus officio doctrine bars merit-based decisional re-engagement with a concluded case, but does not bar a court from facilitating enforcement or execution of its own decree where the decree has not been perfected
- The notice requirements for eviction under sections 152A, 152E and 152F of the Land Act, 2012 apply only to unlawful occupation not subject to a judgment and decree of the court
- Under Order 22 Rule 18(2) of the Civil Procedure Rules the court may dispense with a Notice to Show Cause where issuing it would cause unreasonable delay or defeat the ends of justice
Court orders
#- 1.The court does hereby issue warrants of eviction against the Defendants/Respondents in execution of the decree issued on 18th October 2006 in this matter which was formerly referred to as Kisumu High Court Civil Case No. 197 of 1992
- 2.The warrants be executed by Roban Auctioneers of License No. 008510 'B' with the assistance of the OCS Yala Police Station to ensure law and order
- 3.The costs of this application shall be paid by the Defendants/Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) jurisdiction of the Environment and Land Court over the transferred Kisumu High Court Civil Case No. 197 of 1992; post-judgment execution jurisdiction under Order 22 of the Civil Procedure Rules
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.
It is therefore the finding of this court the objection raised on the ground of functus oficio is not merited.
This court therefore finds it has jurisdiction to entertain the present application and the above ground fails.
My reading of the above provisions is that they only operate where there is no judgement and or decree of the court.
For the foregoing reasons I will dispense with the requirement for the issue of the Notice to show Cause.
The court does hereby issue warrants of eviction against the Defendants/Respondents in execution of the decree issued on 18th October 2006 in this matter which was formerly referred to as Kisumu High Court Civil Case No. 197 of 1992.
The warrants be executed by Roban Auctioneers of License No. 008510 'B' with the assistance of the OCS Yala Police Station to ensure law and order.
The costs of this application shall be paid by the Defendants/Respondents
Issues in the judgment
#The capacity of the applicant is internally inconsistent: the grounds of opposition and ruling describe the applicant as the Defendant, yet the application and supporting affidavit are said to be by the plaintiff/decree holder seeking eviction in execution of a decree in his favour
Date of application is inconsistent within the judgment - stated as 19th August 2025 in places and 19/08/2026 elsewhere
The delivery date line reads 28TH DAY OF MAY 2026 but is followed by the date 28/05/2025
Respondent's grounds of opposition are dated 7th April 2026, which post-dates the hearing of the application filed in August 2025 and the references to submissions of the same date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v Ndiri & 2 others (Environment and Land Case 4 of 2023) [2026] KEELC 3237 (KLR)", Case Analysis (2026). Formerly Kisumu High Court Civil Case No. 197 of 1992. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3237/eng@2026-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.