Loice Wambui & Others Co. Ltd v Kipketer Chumo & another
The bottom line
#A Kenyan land court struck out both eviction and stay applications because the appeal was already pending before the Court of Appeal.
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 plaintiff's application for eviction/vacant possession in enforcement of the judgment and decree should be granted
- 2.Whether the plaintiff complied with paragraph 88(A) of the judgment requiring issuance of a statutory notice before eviction
- 3.Whether the plaintiff complied with Sections 152A-152H of the Land Act, 2012 on evictions
- 4.Whether the defendants' application for stay of execution pending appeal should be granted
- 5.Whether this Court has jurisdiction to entertain the two applications given the pending appeal before the Court of Appeal
Key legal issues
#Whether the ELC retains jurisdiction over enforcement and stay applications where an appeal is pending before the Court of Appeal
The court held it is devoid of jurisdiction; jurisdiction has shifted to the Court of Appeal and the court is functus officio
Relying on Samuel Kamau Macharia on jurisdiction flowing from Constitution or legislation, Republic v Karisa Chengo on voidness for want of jurisdiction, and John Mutua Ngunjiri on duplicate motions in lower courts when an appeal is active, the court concluded both applications were parallel and incompetent and struck them out.
Compliance with paragraph 88(A) of the judgment and Sections 152A-152H of the Land Act on eviction
Not determined on the merits; the court reviewed the judgment's notice requirement and Section 152(E) but disposed of the applications on jurisdictional grounds
The court noted the judgment required the plaintiff to issue a notice requiring vacant possession under Section 152 of the Land Act, and that Section 152(E)(1) requires a minimum three months' (90 days) notice for eviction from private land, but did not rule on compliance because jurisdiction was lacking.
Legal principles established
#- A court's jurisdiction flows from the Constitution or legislation or both, and a court can only exercise jurisdiction as conferred
- When a substantive appeal is fully active before a senior appellate court, duplicate motions in lower or parallel benches are devoid of jurisdiction
- Lack of jurisdiction renders a court's decision void, not merely voidable
Court orders
#- 1.The 1st and 2nd applications dated 5th May 2026 and 16th September 2026 respectively be and are hereby 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
- Article 162(2)(b) of the Constitution (Environment and Land Court) - implied; the ruling turns on jurisdiction flowing from the Constitution or legislation, citing Samuel Kamau Macharia
Relief refused
#Eviction/vacant possession of LR No. Nandi/Ndalat/633 and police security for auctioneers
Court held it lacked jurisdiction over the applications due to the pending appeal before the Court of Appeal
Stay of execution of the judgment dated 20th November 2024 pending appeal
Court held it lacked jurisdiction over the applications due to the pending appeal before the Court of Appeal
Costs
No orders as to costs - applications struck out 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.
In the result, the 1st and 2nd applications dated 5 th May 2026 and 16th September 2026 respectively, be and are hereby struck out with no orders as to costs.
It is trite law that when a substantive appeal arising from the matter in contest is fully active before a senior appellate court; duplicate motions in lower or parallel benches are completely devoid of jurisdiction over the matter
jurisdiction has shifted upward to the Court of Appeal hence, this court is functus officio over the present matter and can no longer entertain these parallel and incompetent applications
Lack of jurisdiction thus renders a court’s decision void as opposed to it being merely voidable.
Issues in the judgment
#Judgment date inconsistently stated as 20th and 24th November 2024
Application dates of 2026 appear anachronistic relative to the 2023 suit and 2024 judgment
Plaintiff named as 'LOICE WAMBUI & OTHERS CO. LTD' - ambiguous entity description
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Loice Wambui & Others Co. Ltd v Kipketer Chumo & another", Case Analysis (2026). ELCLC E009 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5875/eng@2026-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.