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ELCDismissedNot stated in the judgment (ruling on Notice of Motion dated 1st December, 2025 in Kericho ELC suit; Plaint dated 19th November, 2008)

Yegon v Sang & another (Environment and Land Case 54 of 2008) [2026] KEELC 3619 (KLR)

Environment and Land Court
11 June 2026
2,444 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kericho court refused to evict a land occupier because a stay of execution was still in force and the court cannot reopen a decided case.

What this practically means

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Executive summary

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This ruling by L. A. Omollo, J of the Environment and Land Court at Kericho, delivered virtually on 11th June, 2026, determines the Plaintiff/Applicant's Notice of Motion dated 1st December, 2025 seeking police assistance to enforce an eviction order and removal of a caution registered against land parcel Kericho/Kipchimchim/2059. The underlying suit was filed by Plaint dated 19th November, 2008 seeking a declaration of trespass, vacant possession and mesne profits; the defendants filed a defence and counterclaim seeking an excision of a portion of the suit land. On 22nd February, 2024 the Court delivered judgment declaring the Defendant a trespasser, ordering vacant possession within 30 days and in default eviction, with costs. The Plaintiff contended the OCS Brooke Police Post declined to assist absent express court orders. The 2nd Defendant/Respondent opposed, noting she had filed a Notice of Appeal and an application for stay of execution decided on 21st November, 2024, granting stay conditional on depositing Kshs. 500,000/= as security within 30 days. She further deposed that the Plaintiff fraudulently transferred the suit land to third parties and that a caution was registered pursuant to orders in Kericho Misc. Criminal Application No. E331 of 2024 pending DCI investigations. The Court held that stay of execution orders remained in force with no evidence of non-compliance with the security condition, and therefore declined to order police enforcement of the eviction. On the caution, the Court held it was functus officio following final judgment, that the Land Registrar was not a party to the proceedings, and that the proper forum for removal of the caution is the proceedings in which the order for its registration was issued. The application was dismissed with 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 Notice of Motion application dated 1st December, 2025 has merit

Key legal issues

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01

Whether the Court can direct police assistance to enforce an eviction order while a stay of execution is in force

Holding

The Court declined to issue the eviction assistance order because stay of execution of the judgment of 22nd February, 2024 was still in force and no evidence showed non-compliance with the condition attached to the stay orders

Reasoning

The record showed that on 21st November, 2024 the Court granted a stay of execution of the entire judgment conditional upon the 2nd Defendant/Respondent depositing Kshs. 500,000/= as security within 30 days, failing which the stay would lapse. Nothing was placed before the Court demonstrating that this condition had not been complied with. While the stay subsists, orders directing police to enforce the eviction decree cannot issue.

p. 5
02

Whether the Court, having delivered final judgment, can order removal of the caution on the suit land

Holding

No. The Court is functus officio, the Registrar is not a party, and the proper forum is the proceedings pursuant to which the caution order was issued

Reasoning

Relying on the Supreme Court in Odinga v IEBC and the Court of Appeal in Telkom Kenya Limited v John Ochanda, the Court held that the functus officio doctrine prevents re-opening of a matter after final judgment. Additionally, the order for removal of the caution was sought against the Land Registrar, Kericho, who is not a party to the suit, and the proper forum is the criminal proceedings in which the caution order was allegedly made.

p. 6

Legal principles established

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  • Once a Court has determined a suit on merit it becomes functus officio and cannot re-open or vary its decision
  • A party cannot obtain orders against a non-party in the same proceedings

Court orders

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  1. 1.The Plaintiff/Applicant's Notice of Motion application dated 1st December, 2025 is dismissed with costs
  2. 2.It is so ordered

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 3A & 63(e) of the Civil Procedure Act and Order 51 Rules 1 & 3, Order 22 Rule 29 of the Civil Procedure Rules

Relief refused

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Order directing the OCS Brooke Police Station to render assistance in evicting the Defendant/Respondent from Kericho/Kipchimchim/2059

There are subsisting orders of stay of execution of the judgment of 22nd February, 2024, and nothing was placed before the Court showing non-compliance with the security condition attached to the stay orders

p. 5

Order directing the Country Land Registrar, Kericho to remove the caution registered against Kericho/Kipchimchim/2059

The Court has become functus officio after delivering judgment; moreover, the Land Registrar is not a party to the proceedings, and the proper forum for removal of the caution is the proceedings in which the order for its registration was issued

p. 6

Costs

The application is dismissed with costs (to the 2nd Defendant/Respondent)

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.

Taking the foregoing into consideration, I find that the Plaintifi/Applicant’s Notice of Motion application dated 1st December, 2025 lacks merit and it is hereby dismissed with costs.
p. 6Disposition - dismissal of the application
Functus oficio is an enduring principle of law that prevents the re-opening of a matter before a Court that rendered the final decision thereon.
p. 6Functus officio doctrine
the Court having delivered its judgement, cannot consider whether or not an order should issue for the removal of the caution that was allegedly registered on the suit parcel of land as it is functus oficio.
p. 6Limitation on post-judgment powers
As things remain, there are orders of stay of execution of the judgement delivered by this Court on 22nd February, 2024 and nothing has been placed before this Court to show that the condition attached to the orders of stay of execution has not been complied with.
p. 5Effect of subsisting stay of execution
If at all the said caution was registered upon the issuance of a Court order, then the proper forum to seek for its removal will be in the proceedings pursuant to which the said order is alleged to have been issued.
p. 6Proper forum for removal of caution
It is so ordered.
p. 6Final orders

Issues in the judgment

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minor

The 2nd Defendant/Respondent deposes that she filed an application seeking stay of execution and 'a ruling was delivered on 22nd February, 2024', but the record shows the ruling on stay was delivered on 21st November, 2024; 22nd February, 2024 is the judgment date

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, "Yegon v Sang & another (Environment and Land Case 54 of 2008) [2026] KEELC 3619 (KLR)", Case Analysis (2026). Not stated in the judgment (ruling on Notice of Motion dated 1st December, 2025 in Kericho ELC suit; Plaint dated 19th November, 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3619/eng@2026-06-11

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