Odhiambo v Ndiri & 2 others (Environment and Land Case 4 of 2023) [2026] KEELC 3237 (KLR) (28 May 2026) (Ruling)

Odhiambo v Ndiri & 2 others (Environment and Land Case 4 of 2023) [2026] KEELC 3237 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3237 (KLR) Republic of Kenya In the Environment and Land Court at Siaya Environment and Land Case 4 of 2023 AE Dena, J May 28, 2026 Between George Odhiambo Plaintiff and Charles Ndiri 1st Defendant Rose Onyango Owala 2nd Defendant George Omondi Owala 3rd Defendant Ruling 1.The subject of this ruling is the Notice of Motion Application dated 19th August 2025. The application seeks the following orders: -1.Spent2.The court do issue warrants of eviction against the Defendants/Respondents forthwith 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 1992.3.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.4.The costs of this application be provided for. 2.The application is premised on the grounds on its face and the supporting affidavit of George A. Odhiambo sworn on 19/8/2025. He avers that on 26th June 2025 this court dismissed an application for stay of execution of the judgment and decree of this court of 18th October 2006. A copy of the ruling is annexed. That there is no plausible reason why this matter is still being mentioned by the court on 1st October 2025, a far-off date which is causing prejudice to him. This is termed as a miscarriage of justice. 3.The deponent details the litigation history of the matter culminating to an Originating Summons dated 15/4/2021 where the defendant’s claimed ownership of half of the suit property by adverse possession which was dismissed on 12/10/2023 by this court. The deponent avers that litigation must come to an end. That the defendants are abusing the court process by preventing the applicant from enjoying the fruits of his judgment delivered in 2006. That he is 96 years of age and the continued litigation being orchestrated by the defendants weighs heavily on him and his family. 4.The deponent states with advice of his counsel on record that the provisions of Order 22 Rule 29(1) of the Civil Procedure Rules are clear on eviction that is to take place by removing any person that is bound by the decree and who refuses to vacate the property. Response to the Application 5.The Respondent filed grounds of opposition dated 7th April 2026 as follows; -1.That the court having rendered its decision is now functus officio and cannot entertain the application filed by the defendant/applicant2.That the orders sought in the instant application can only be sought in the court that granted eviction orders and as such this court lacks the jurisdiction to entertain the same3.That the Defendant / Applicant cannot be speaking from both sides of the mouth; asserting that the suit/ Application filed by the plaintiff/applicant was res-judicata and at the same time making the instant application within the said suit4.That the instant application filed by the defendant/applicant is incompetent and ought to be dismissed with costs5.That the instant application is a waste of precious judicial time since the said application belongs to another forum which is essentially the court that issued the orders sought to be enforced6.That the Defendant/ Applicant cannot claim in this matter that he has made several attempts at execution and still seek the orders in the instant application. 6.The respondent wants the application dismissed. Submissions 7.The application was heard by way of written submissions. Applicants Submissions 8.The deponent outlined the history of the case from the time it was filed in in 1992 at the High Court in Kisumu , transfer to the ELC Court, judgement of the ELC and appeal thereto and the various orders of eviction issued against the defendants’ respondents and status todate , and the defendants continued occupation of the suit property in defiance to the said orders. 9.It is submitted that the Kisumu matter does not exist anymore because the file being active even after the judgment was issued, was transferred to the requisite and relevant court being the Siaya Environment and Land Court. The decision to transfer the file was not on occasion of the Plaintiff but an administrative decision seeing that the Environment and land court and the disputed property was in the jurisdiction of that court. Consequently, the question of this court jurisdiction is unwarranted. 10.On whether this court is functus officio it is urged that the applicant is not asking this court to re-open the matter or give a merit based decisional re engagement of the judgment but seeks a determination on the execution of this courts decree and which is not outside the ambit of this court. Reliance is placed in the case of Raila Odinga & 2 Others Independent Electoral & Boundaries Commission & 3 others (2013) eKLR where the Supreme Court of Kenya held that ‘Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected." Also Telkom Kenya Limited Vs John Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKL.R 11.The applicant submits that the application dated 19 August 2025 be allowed with costs. Respondents Submissions 12.The respondents’ submissions are dated 7/4/2026. Highlighting the history of the matter it is submitted that the court is functus officio having rendered its ruling dismissing the Defendants application. As such, the court should be wary of the Defendant/ Applicant's invitation to re-engage in the matter. Reliance is placed on Telkom Kenya limited v John Ochanda (supra). 13.It is asserted that the orders being sought ought to be brought before the court that issued the eviction orders being Kisumu High Court Civil Case No. 197 of 1992. The applicant is inviting this court to an academic exercise through the application. The application is unmerited, amounts to abuse of court processes and should be dismissed with costs. Analysis and Determination 14.Before I delve into the analysis of the application before court, I will rehash the history of this matter as extracted from the various supporting affidavits filed in court by the applicant decree holder. 15.Judgment of this case was delivered on 18th October 2006 the suit having been filed in the year 1992. An appeal was preferred by the defendants which appeal was dismissed on 3rd October 2007. An order for eviction was issued on 17th September 2013. On 12th October 2023 the court dismissed the defendant’s application for ownership of the suit property on a claim of adverse possession and ordered that eviction proceeds. On 26th Day of June 2025 I delivered a ruling dismissing the defendant’s application for stay of execution of the orders of 12/10/2023 meaning execution was to proceed. 16.On 3/7/2025 the matter was before this court when Ms. Koech sought directions on execution. I directed that the court having declined to grant orders of stay execution process was to proceed as per the law. I also observed that execution was a process for the Deputy Registrar. I gave a date for the parties to appear before the DR on 30/7/2025. 17.On 30/7/2025 parties appeared before the DR and Ms. Koech informed the court, she was not aware why the matter was before the court having been concluded vide the ruling of 26th Day of June 2025. Mr Sala then appearing for the defendants informed the court his client had been served with an illegal eviction notice of 14 days contrary to the provisions of section 152 of the Land Act requiring a minimum of 90 days. He urged counsel to comply with the law including NTSC after expiry of the notice period. 18.In response Ms. Koech was of the view that they cannot go back to the said provisions as there was a decree. She prayed for issuance of warrant of arrest. 19.The DR fixed the matter for mention on 1/10/2025 to enable him appreciate the record. I must observe that this is the date that is being impugned by the applicant which is termed as a far-off date which is causing prejudice to him. It is noteworthy that on the 1/10/2025 both parties were absent before the DR and the matter was fixed for mention on 22/10/2025. 20.On 22/10/2025 Ms Koech asserted that there was no need to apply for eviction as the issue has been litigated severally. In response Mr Salah reiterated the earlier position. The DR reserved his ruling for 24/11/2025. Vide a ruling dated 26/11/2025 the DR observed that the record did not bear a Notice to show Cause requesting the court to issue a warrant of arrest and thus Ms. Koech was to move the court appropriately. The DR also noted that the present application had been filed and referred the matter back to this court and gave directions on service of the application. 21.Having put the issues into context I will now identify the issues for determination in the current application dated 19/08/2026 as follows; -1.Whether the court is functus officio2.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? 22.It is trite that jurisdiction is everything without it the court cannot move a single step and should it find it has no jurisdiction therefore it must down it tools. The plea of functus officio goes to the jurisdiction of the court. 23.The jurisdictional issue is raised on the ground that based on the history of the matter the court is functus officio having rendered its ruling dismissing the Defendants application cannot re-engage in the matter. 24.A discussion of the meaning and rationale of functus officio as seen by courts that have discussed the principle is pertinent for the guidance of this court. Two cases have been cited by the parties and I will not reinvent the wheel. 25.The Supreme Court of Kenya in the case of Raila Odinga & 2 Others Independent Electoral & Boundaries Commission & 3 others (2013) eKLR enumerated thus; -18.We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept: “The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”19.This principle has been aptly summarized further in Jersey Evening Post Limited v A1 Thani [2002] JLR 542 at 550: “A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available” [emphasis supplied]. 26.The Court of appeal in Telkom Kenya Limited Case (supra) also held that: -The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions...” 27.The question that arises is whether the present application is moving the court to re-engage with the case. The present application seeks that this court issues warrants of eviction against the Defendants/Respondents forthwith in execution of the decree issued on 18th October 2006 and that the same be executed. That the said warrants be executed by M/S ROBAN Auctioneers of License No. 008510 'B' with the assistance of the OCS Yala Police Station to ensure law and order. 28.Do the above orders entail a re-engagement of the merits of the judgement, my answer is a re-sounding no. The application is a post judgement issue seeking orders that will facilitate the enforcement and or execution of the orders of the court. The court is not being called upon to review its orders. Not at all. Moreover, drawing the guidance of the Supreme Court in the authority cited herein the decree of the court has not yet been perfected and or achieved by the decree holder. 29.It is therefore the finding of this court the objection raised on the ground of functus officio is not merited. 30.It has further been urged that the present application ought to be brought before the court that issued the eviction orders being Kisumu High Court Civil Case No. 197 of 1992. Indeed, it is not in dispute that these proceedings were commenced in the High Court at Kisumu and were transferred to the ELC Kisumu being an ELC case that remained active after appeal and post judgement. This resonates with the holding of the Supreme Court in the case of R Vs Chengo & 2 Others (Petition 5 of 2015) (2017) KESC 15 KLR 31.In any case if the defendant asserts this position, then they ought to have raised it long ago but they have continued to participate in proceedings before the ELC court where they too have approached the court on several applications. They cannot approbate and probate at the same time. 32.This court therefore finds it has jurisdiction to entertain the present application and the above ground fails. 33.But the most germane question is whether the orders sought in the present application should issue or in other words does the application have merit? 34.It has been urged that the provisions of Order 22 Rule 29(1) of the Civil Procedure Rules are clear on eviction that is to take place by removing any person that is bound by the decree and who refuses to vacate the property. 35.The above provisions read; -Decree for immovable property [Order 22, rule 29]1.Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.2.Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property.3.Where possession of any building or enclosure is to be delivered, and the person in possession being bound by the decree does not afford free access, the court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of her community to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession. 36.The contention before the DR was that a Notice to show cause ought to have issued before warrants of arrest are issued as well as 90 days’ notice as envisaged under Sections 152A, 152B,152E and 152 F of the Land Act, 2012 (as amended) 37.Let me digress and speak briefly to the above provisions and the requirement for the said notice and put the issue to rest once and for all in these proceedings. The foregoing provisions of the Land Act 2012 provide for the evictions of persons occupying land unlawfully. Section 152A of the Land Act 2012 (the Act) prohibits unlawful occupation of land be it private, public or community land. Section 152E of the Act provides that a person unlawfully occupying private land may be served with a notice to vacate. Section 152F provides for relief against a notice of eviction. 38.My reading of the above provisions is that they only operate where there is no judgement and or decree of the court. In the present case a judgement of the court was issued and upheld by the Court of Appeal. 39.Back to the orders sought in the application. I respectfully agree with the position that a Notice Show Cause why the Decree should not be executed ought to have issued before the warrants of eviction issued. This is the requirement under Order 22 Rule 18 (1) (a) which provides as follows; -1.Where an application for execution is made –a.More than one year after the date of the decreeb.Against the legal representative of a party to the decree orc.…………………………….the court executing the decree shall issue notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed why the decree should not be executed against him. 40.However Rule 18 (2) reads-Nothing in sub rule (1) shall be deemed to preclude the court from issuing any process in execution of a decree without issuing the notice thereby subscribed, if for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. 41.Arising from the above proviso this court has the discretion to dispense with the NTSC above on the basis of unreasonable delay or where the ends of justice would be defeated. 42.It is not in dispute that the applicant has been in the corridors of justice since the year 1992 when these proceedings were commenced, the disposition of the suit in his favor both at the High Court and Court of Appeal and thereafter the numerous applications made post judgement by the defendants and he has yet to enjoy the fruits of its judgement. To dub this delay unreasonable would be an understatement in my view maybe I could term it grossly unreasonable if there be such a description. 43.Allowing any further delay would be to defeat justice. It would negate the very essence of the objectives of the Civil Procedure Act and the Environment & Land Court Act. I will refer to the case Said Sweilem Gheithan Saanum Vs. Commissioner of Lands (being sued through the Attorney General) & 5 Others (2015) eKLR where the court stated thus; -Justice shall not be delayed is no longer a mere legal maxim in Kenya but a constitutional principle that emphasizes the duty of the advocates, litigants and other court users to assist the court to ensure the timely and efficient disposal of cases.’ 44.For the foregoing reasons I will dispense with the requirement for the issue of the Notice to show Cause. 45.The upshot of the foregoing is that this court finds the application dated 19th August 2025 merited and is allowed in the following terms; -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/RespondentsOrders accordingly DELIVERED AND DATED THIS 28TH DAY OF MAY 2026HON. LADY JUSTICE A.E. DENAJUDGE28/05/2025Ruling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:Ms Koech for the PlaintiffMr Odhiambo for Defendant/RespondentCourt Assistant: Abiud Wekesa