https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4604

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELC NO.200 OF 2016** **PRISCILLAH WANJA KIBUI (Suing as the administrator of the estate of Mary Wangechi Kibui) …………………………….…………….... PLAINTIFF** **-VERSUS-** **JAMES KIONGO KIBUI………………………….…...……1ST DEFENDANT** **CHARLES WAMBUGU GITONGA...……………...…….2ND DEFENDANT** **THE LAND REGISTRAR, NYERI…...……….…………...3RD DEFENDANT** **THE HON. ATTORNEY GENERAL…………………….4TH DEFENDANT** **ECOBANK KENYA LIMITED………………...…………5TH DEFENDANT** **RULING** 1. The Decree-Holder herein filed an application dated November 2, 2025, seeking the following orders: 2. **Spent.** 3. **This Honorable Court be pleased to grant leave to the firm of Karoki Mwangi & Co. Advocates to come on record for the Decree/Holder/Applicant post-judgment for the purpose of execution of the decree dated 2nd September 2025, in place of the firm of S.B Otieno & Co. Advocates, which previously acted for her.** 4. **It is hereby requested that, upon approval of the leave sought, the firm of Karoki Mwangi & Co. Advocates be recognized as duly representing the Decree Holder/Applicant. Additionally, the draft Notice of Change of Advocate submitted herewith shall be deemed properly filed upon payment of the necessary court fees.** 5. **This Honorable Court be pleased to restrain the judgment/debtor Charles Wambugu Gitonga, whether acting himself, through his agents or servants, or by any persons claiming through him or under his instructions, from entering, interfering with, occupying, collecting rent, evicting tenants, or in any manner dealing with** **Nyeri Municipality/Block 11/224 pending the determination of this application.** 6. **This Honorable Court be pleased to order all tenants occupying Nyeri Municipality/Block 11/224 to pay rent exclusively and directly to Ms. Priscillah Wanja Kibui, the decree holder and applicant on behalf of the estate of Mary Wangechi Kibui (Deceased), through Equity Bank, Nyeri Branch, Account No. 0110100192884, and to grant the decree holder exclusive control and management of Nyeri Municipality/Block 11/224 and all structures, rental premises, and buildings erected thereon until further orders of this Honorable Court.** 7. **The Court kindly requests the issuance of Warrants of Eviction against the Judgment Debtor, Charles Wambugu Gitonga, residing in Nyeri Municipality/Block 11/224. Additionally, these warrants should encompass all buildings, rental premises, and structures erected thereon. The objective is to facilitate the delivery of vacant possession of the said premises to the decree holder. The execution of the warrants shall be carried out by Joseph Kahoro T/A Upstate Kenya Auctioneers, in accordance with the Auctioneers Act (Cap 526) and Order 22 of the Civil Procedure Rules.** 8. **This Honorable Court be pleased to direct the Officer Commanding Station (OCS) of Nyeri Central Police Station, or such other officer as may be designated, to provide security and supervision throughout the eviction process to ensure the lawful, peaceful, and effective execution of the court decree dated September 2, 2025, until the eviction of the judgment debtor, Charles Wambugu Gitonga, from Nyeri Municipality/Block 11/224 and the premises built therein.** 9. **This Honorable Court be pleased to issue a perpetual restraining order against the Respondent, whether by himself, his agents, servants, or any persons claiming through him or under his instructions, from entering, interfering with, occupying, collecting rent, evicting tenants, or in any manner dealing with Nyeri Municipality/Block 11/224** 10. **This Honorable Court be pleased to order the Respondent to pay to the estate of Mary Wangechi Kibui (Deceased) mesne profits at the rate of Kenya Shillings Two Hundred Thousand (Kshs. 200,000) per month and/or any assessed amount from January 21, 2010, until delivery of vacant possession. The said warrants are to be executed by Josph Kahoro T/A Upstate Kenya Auctioneers in Nyeri Municipality/Block 11/224, in accordance with the Civil Procedure Rules.** 11. **This Honorable Court be pleased to order the Land Registrar, Nyeri, to unconditionally re-register Nyeri Municipality/Block 11/224 in the names of James Kiongo and Mary Wangechi Kibui, as was prior to 21st January 2010.** 12. **This Honorable Court be pleased to order the Judgment Debtor, Charles Wambugu Gitonga, to execute the transfer and all instruments necessary for the registration of Land Parcel No. Nyeri Municipality/Block 11/224, as decreed, and, in default of such execution, the Deputy Registrar of this Honorable Court be authorized to execute the said documents on behalf of the Judgment Debtor, and the Land Registrar do register the same accordingly.** 13. **This Honorable Court be pleased to make such further or other orders as it may deem just and expedient under the circumstances.** 14. The Application is supported by the affidavit of the Applicant, who was the Plaintiff in the suit and is now the Decree-Holder. He deposed that he is the legal representative of the Estate of the late Mary Wangechi Kibui (Deceased). By judgment of the Court of Appeal dated 2nd September 2025 in **Nyeri Civil Appeal No. E094 of 2022**, A decree was issued directing the Respondent/Judgment Debtor to vacate and deliver vacant possession of the parcel of land known as Nyeri Municipality/Block 11/224, together with all the buildings and rental premises erected thereon. 15. That the said decree further vested the Decree Holder with the right to collect rent from the tenants occupying the said premises pending full execution and compliance with the court’s orders. Despite service of the said decree and repeated demands, the Respondent/judgment debtor has refused to vacate the suit property. 16. On or about October 9, 2025, the said Charles Wambugu, the Judgment-Debtor herein, through his advocate issued a written notice to the tenants occupying the premises comprised in Municipality/Block 11/224, stating, *‘The court has not issued any orders directing you (Tenants) to pay rent to any other person, and you are therefore to continue paying rent to the same account as you have always done. If there is any change, you shall be duly notified by your landlord, Charles Wambugu Gitonga.’* 17. The Applicant argues that by issuing such a misleading directive, Charles Wambugu acted in blatant defiance of the court’s decree and with the intent to confuse the tenants and obstruct the lawful execution of the decree, constituting a deliberate attempt to defeat the implementation of the decree and to undermine the authority of this Honorable Court. 18. Despite the judgment-debtor’s undertaking that he understood the consequences of disobeying a court order, on or about October 28, 2025, in flagrant disobedience of the court decree, the judgment-debtor unlawfully entered the suit premises, broke into several tenants’ units, including those of tenants who had duly paid rent to me in accordance with the court decree, and removed doors, windows, household goods, and personal belongings of the affected tenants under the guise of enforcing alleged rent arrears. 19. The Applicant is apprehensive that unless warrants of eviction against the Respondent/Judgment Debtor to vacate and deliver vacant possession of the suit property, together with all the structures therein, are issued forthwith, the Respondent will continue to unlawfully occupy the premises and collect rent in contemptuous disregard of this Honorable Court’s decree, to the prejudice of the Decree Holder and the beneficiaries of the estate. 20. The Applicant deposed that the suit property, Nyeri Municipality/Block 11/224, generates approximately Kenya Shillings Two Hundred Thousand (Kshs. 200,000) per month. Therefore, mesne profits from January 21, 2010, to the date of judgment amount to Kshs. 37,000,000 and continue to accrue at the same rate, which she seeks. 21. She further prays that the warrants of eviction be executed by Joseph Kahoro T/A Upstate Kenya Auctioneers in accordance with the Auctioneers Act (Cap 526) and Order 22 of the Civil Procedure Rules. **The 2nd Defendant/Judgment-Debtor’s replying affidavit** 1. The Judgment-Debtor, who was the 2nd Defendant in the suit, swore an undated affidavit in response to the instant application. He deposed that the plaintiff/applicant is misleading the court by seeking an order to restrain him from entering or occupying the suit land, implying that he is not in occupation thereof, which is not true, as he is indeed in occupation of the suit land and has been there ever since the same was sold to him by the 1st Defendant herein, who gave him exclusive and quiet possession of the same. 2. He accused the Plaintiff of failing to disclose that when she approached the court by way of the plaint dated August 19, 2016, she sought only orders regarding her and her siblings' beneficial interest in the suit land, Nyeri Municipality/Block 11/224, which is half of the suit land. 3. It is the 2nd Defendant’s contention that the prayer awarded by the Court of Appeal and the decree dated 2nd September, 2025, attached by the applicant to her application clearly show that the beneficial interest of the plaintiff and the siblings was preserved by way of an injunction, and that she is not entitled to the entire parcel of land to the exclusion of the 2nd Defendant. 4. Therefore, the 2nd Defendant contends that there is no basis for the applicant to ask this Honor Court to order that all tenants occupying the suit land pay rent exclusively and directly to her, stating that it is he who has extensively developed the entire suit land by putting up rental premises thereon, so that even if the estate of her mother is entitled to a half-share interest in the land, she would have to reimburse him for the value of the development thereon. 5. Regarding eviction, the 2nd Defendant deposed that he was advised by his advocate that the applicant did not seek an order for eviction in her plaint and that none was issued by the court. He denied that the court ordered him to vacate and deliver vacant possession of the suit land. 6. The 2nd Defendant deposed that he is advised that parties are bound by their pleadings and that the applicant cannot, at this stage, sneak in a prayer for eviction through an application, a prayer that is unsupported by the plaint and the court's decree. 7. In any event, owing to the averments above that he is the lawful owner of half of the share interest in the land, the 2nd Defendant deposed that this Honorable Court would have to be specifically moved to have the plot divided into two and separate titles issued, and only after that would an order for eviction against me be sought. 8. Further, he deposed that the applicant has not enforced the other limbs of the decree that directed her to pursue the succession of her deceased mother to allow the suit land to be registered in his name and that of the administrator of the estate of Mary Wangechi Kabui as tenants in common in equal shares, so that subdivision can follow. 9. The 2nd Defendant believes that the applicant is only interested in dislodging him from his investment of many years, in which he has invested a lot of money, and that the applicant's interest is to benefit herself from it while making no effort to resolve the situation. 10. Regarding the prayer for mesne profits, the 2nd Applicant deposed that it is not for the applicant to calculate mesne profits from figures plucked from the air, and that the figure of Kshs. 37, 000, 000/- has no basis and cannot be sought through this application, since it was neither pleaded nor proved by way of evidence as special damages usually are. **The Plaintiff’s further affidavit** 1. The Plaintiff swore a further affidavit on March 9, 2026, in which she deposed that the contents of the Respondent’s Replying Affidavit are misleading, misconceived, and intended to obstruct the lawful execution of a valid court decree. 2. She contended that the Respondent’s allegation that he is entitled to a half share interest in the suit property was fully canvassed and determined in the proceedings culminating in the Court of Appeal Judgment. The Court of Appeal expressly ordered that the certificate of lease issued to the Respondent on January 21, 2010, be revoked and canceled, and directed that the property be re-registered as it existed before that date. 3. The Plaintiff’s position is that, by virtue of the said order, the Respondent does not possess any valid proprietary interest capable of protection by this Honorable Court because the Court of Appeal nullified it. 4. She added that eviction is a lawful mode of execution under Order 22 of the Civil Procedure Rules, where a decree entitles a party to possession of immovable property, because the Respondent’s continued occupation constitutes unlawful possession and obstruction of the execution of the court decree. 5. The Plaintiff deposes that the Respondent has falsely alleged that he developed the entire suit property by constructing rental houses thereon, and that the truth of the matter is that the Respondent found several existing structures already standing on the suit property. If the Respondent carried out any additional developments, they were done while he was unlawfully enjoying possession of the property for over ten (10) years, and he has long since recouped any alleged investment through the rent he has been collecting. 6. The Plaintiff argues that her actions in seeking to enforce the court decree and secure the property for the benefit of the estate fall squarely within the powers conferred upon her by the grant of letters of administration ad litem. The Plaintiff further argues that the Respondent’s continued occupation, interference with tenants, and unlawful collection of rent constitute deliberate obstruction of the execution process. 7. It is her prayer that unless the orders sought herein are granted, the Respondent will continue to undermine this Honorable Court's authority and deprive the estate of the fruits of a lawful judgment. 8. Parties filed written submissions, which the Court has duly read and considered. **Analysis and determination** 1. The first prayer sought by the Applicant is for an order granting leave to the firm of Karoki Mwangi & Co. Advocates to come on record for the Decree-Holder/Applicant post-judgment, in place of the firm of S.B. Otieno & Co Advocates, which previously acted for her. This is pursuant to Order 9 Rule 9 of the Civil Procedure Rules, which provides that: ***“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—*** ***(a)upon an application with notice to all the parties; or*** ***(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”*** 1. Because an application has been made, this prayer – to allow counsel to come on record post-judgment – is allowed without reservation, as it is not objected to. 2. The main issue that has been raised herein is the execution of the Court of Appeal’s judgment delivered on the 20th of June 2025 and the resultant decree issued on the 2nd of September 2025. 3. The Court of Appeal, in its judgment, allowed the appeal by Plaintiff/Decree-Holder, set aside the judgment and decree of this Court, and substituted an order allowing her suit before that court. It further ordered that each party bear their own costs of the appeal and the costs below. 4. The resulting decree reads as follows: 5. **THAT the Appeal by James fails and is dismissed with no orders on costs.** 6. **THAT the Appeal by Priscilla to set aside the Judgment and decree of ELC and to substitute therefor an order allowing her suit before that court is hereby allowed.** **a. An order of** **permanent injunction to issue against the 2nd and 5th defendants to restrain them, their agents, servants, and/or anybody claiming in their names from selling, alienating, or in any other way disposing of or dealing with Parcel No. Nyeri Municipality/Block 11/224 in a manner inconsistent with the beneficial interest of the plaintiff and her siblings.** **b. An order directing that the certificate of lease issued by the 3rd defendant to the 2nd defendant for Nyeri Municipality/Block 11/224 on 21st January 2010 be and is hereby revoked and/or canceled.** **c.** **An order directing that Nyeri Municipality/Block 11/224 be re-registered in the manner it was registered before 21st January, 2010, to facilitate commencement of succession proceedings in the estate of Mary Wangechi Kibui (deceased).** **d.** **An Order directing the 2nd defendants to account for and deliver up to the plaintiff all the mesne profits realized from the suit property from 21st January, 2010 till the date of Judgment herein.** 1. **THAT each party to bear their own costs of the appeal and costs below.** 2. The suit was instituted by the Plaintiff herein by Plaint dated 19th August 2016, and the suit was heard. Judgment was delivered by the Court, from which the parties sought an appeal, and the judgment was entered in the above terms. The Plaintiff claims that the 2nd Defendant/Judgment debtor is in flagrant disobedience to the said orders and now seeks the Court's aid to execute them. 3. I have noted that a pertinent issue is that the Decree-Holder claims that the Court of Appeal granted her the entire suit property known as LR. No. Nyeri Municipality/Block 11/224, while the 2nd Defendant claims that she is entitled to only a ½ share thereof. 4. Order 2C, Decree stemming from the judgment of the Court of Appeal, reads as follows: **‘An order directing that NYERI MUNICIPALITY/ BLOCK II/224 be re-registered in the manner it was registered before** **21st January, 2010 to facilitate commencement of succession proceedings in the estate of Mary Wangechi Kibui (deceased)’.** 1. According to the Plaint filed by the Decree Holder in this Court, before the 2nd Defendant became the registered owner of the suit property on January 21, 2010, her deceased mother, whose estate she represents together with the 1st Defendant herein, held title to the suit property as a tenant in common in equal shares. This is the position the Court ordered the suit property to revert to. 2. The 2nd Defendant’s contention that he is to hold the suit property together with the deceased in ½ shares because he bought it from the 1st Defendant is therefore incorrect, as his title was completely revoked and canceled. 3. Regarding execution, Order 22 Rule 6 of the Civil Procedure Rules provides that: ***“Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree, or, if the decree has been sent under the provisions hereinbefore contained to another court, then to such court or to the proper officer thereof; and applications under this rule shall be in accordance with Form No. 14 of Appendix A.”*** 1. While this Court is mandated to issue orders in furtherance of the execution of a Decree, the Applicant/Decree-Holder has sought several orders that cannot be granted at this stage because this Court is *functus officio*. The Apex Court in the case of **Raila Odinga v Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013 (Consolidated)) [2013] KESC 8 (KLR) (24 October 2013) (Ruling)** stated as follows on the doctrine of *functus officio:* ***“Petition No 5 of 2013 has been heard and determined; the court has become functus officio, and so has no further authority to hear or determine any matter attendant on any proceeding in the said petition.*** ***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.”*** 1. The specific prayers I am referring to are those that seek similar or new orders to the Decree already issued, that is, the order for an injunction and the order for a perpetual restraining order, which the Court of Appeal already granted in its Decree in the form of order number 2a, the permanent injunction to issue against the 2nd and 5th defendants to restrain them, their agents, servants, and/or anybody claiming in their names from selling, alienating, or in any other way disposing of or dealing with Parcel No. Nyeri Municipality/Block II/224 in a manner inconsistent with the beneficial interests of the plaintiff and her siblings. 2. Regarding prayer number 10, requested by the Applicant to instruct the Land Registrar in Nyeri to unconditionally re-register Nyeri Municipality/Block 11/224 in the names of James Kiongo and Mary Wangechi Kibui, as it was before 21st January 2010, it should be noted that this has already been granted by Order 2c of the Decree. The Applicant's sole obligation is to follow the proper procedural steps after submitting the Decree to the Lands Office in Nyeri for its execution. 3. With that said, the Applicant/Decree-Holder is entitled to enjoy the fruits of her judgment as decreed by the Court of Appeal. As held in the authority relied upon by her Counsel, **Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR),** the Court held that: ***“The ordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the court giving him success at any stage. That is trite knowledge. This is one of the fundamental procedural values which is acknowledged.”*** 1. Eviction is part of the execution of a Court order. Since the 2nd Defendant’s title was revoked, this order would only serve to aid the execution of the decree and thus can be granted by this Court. 2. As for *mesne* profits, this was provided for in the Decree by Order 2(d), as follows: **‘An Order directing** **the 2nd defendant to account for and deliver up to the plaintiff all the mesne profits realized from the suit property from 21st January, 2010 till the date of Judgment herein’** 1. This Court therefore directs the 2nd Defendant to provide an accurate account of rent payments from January 21, 2010, to date within 30 days of this ruling and to deliver the same. Failure to do so will result in contempt of Court. 2. The 2nd Defendant is hereby ordered to surrender his revoked title deed to the Land Registrar forthwith, as it appears he has not yet done so. 3. Therefore, the application dated November 2, 2025, succeeds in the manner I have provided above, with costs. **Dated, signed, and delivered electronically in Nyeri on this 2nd day of July, 2026.** **E. K. MAKORI** **JUDGE** **In the presence of:** **Mr. Karoki for the Applicant** **Ms. Koech for the Respondent** **Denis: Court Assistant**