https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4316

Kosikirr v Karaine (Sued as the Administrator of the Estate of Ipissi Kashinko Koisikir a.k.a Deceased) & 2 others (Environment and Land Case E010 of 2022) [2026] KEELC 4316 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4316 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Case E010 of 2022 J Omange, J July 9, 2026 IN THE MATTER OF AN APPLICATION UNDER SECTION 38 OF THE LIMITATION OF ACTION ACT (CAP 22) LAWS OF KENYA Between Sekita Ole Kosikirr Plaintiff and Purity Toiyian Karaine (Sued as the Administrator of the Estate of Ipissi Kashinko Koisikir a.k.a Deceased) 1st Defendant Kashingo Ole Koisikirr 2nd Defendant Mary Katito Odage 3rd Defendant Ruling 1.Vide the application dated 12th November 2025 the Plaintiffs seek an order directing and compelling the County Surveyor, Loitokitok to forthwith visit, survey and sub divide Land Parcel No Loitokitok/ Ngama 210 in accordance with the Judgement of the court delivered on 20th February 2025 so as to excise and demarcate the portion of 11.45 hectares awarded to the Plaintiff/ Applicant. The applicant seeks a further order directing the Land Registrar to register the resultant survey and issue a separate title deed in the name of the Plaintiff/ Applicant. Lastly the Applicant sought an order for police security by the OCS Loitokitok Police Station. 2.The Application is premised on the grounds that this Court delivered a judgement on 20th February 2025 granting the Plaintiff half of the suit property Loitoktok/Ngama/210 on the basis of adverse possession and customary trust. Following this directive, a decree was extracted and the same served upon the Land Registrar who then instructed the County Surveyor to undertake the survey but the County Surveyor requested for a court order. As such, the orders sought are necessary to ensure compliance with the Court’s order. He avers that there is imminent threat of hostility and breach of peace during the exercise hence the request for security. 3.The 1st to the 3rd Defendants/Respondents oppose the application on grounds that it includes the 4th, 5th and 6th Defendants who were not parties to the suit. The court is functus officio and cannot entertain new parties. They also aver that they have filed Civil Appeal E724 of 2025 in the Court of Appeal and insist that this Court has no jurisdiction to determine a matter that is pending at the Court of Appeal. 4.Counsel for the Plaintiff submits that Section 1A, 1B, 3A, 63(e) Civil Procedure Act empowers Court to make necessary orders for the ends of justice with reference to Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2008] KEНC 959 (KLR) and Republic v Public Procurement Administrative Review Board & 2 Others Ex Parte Pelt Security Services Limited [2025] KEНС 11171 (KLR). On whether the Appeal bars the application, it was submitted that an appeal does not operate as stay of execution. Thus the Court has jurisdiction to determine the application and grant the reliefs sought together with costs. 5.At the time of writing the Ruling, the Respondents had not filed submissions. 6.The Court distills the following issues for determination:i.Whether inclusion of the 4th, 5th and 6th defendants in this application is erroneous.ii.Whether the pendency of Civil Appeal No. E724 of 2025 divests this Court of jurisdiction to determine this Application.iii.Whether the Court is functus officio.iv.Whether the Applicant has satisfied the threshold for the grant of the orders sought. 7.The 1st to the 3rd Respondents insist that the 4th, 5th and 6th defendants were not parties in the original suit and cannot be joined at this stage. On this ground, the Court agrees that the parties indicated as 4th, 5th and 6th defendants cannot be enjoined to this suit at this point as a judgement was already delivered. However, should the court find that the reliefs sought are merited, there is no bar to the Court issuing orders directed at the said entities so as to facilitate implementation of the courts decision. 8.The 1st - 3rd Respondents also oppose this application arguing that the judgement delivered on 20th February 2025 was appealed against and this Court was thus divested of jurisdiction to entertain it. The Applicant submits that the Court of Appeal has not stayed execution of this Court’s judgement, thus the reliefs sought which ought to give effect to the said judgement can be duly issued adding that the Court is not functus officio in that regard. 9.It is on record that a Memorandum of Appeal dated 3rd September 2025 against the judgement dated 20th February 2025 was filed at the Court of Appeal. However, there is no evidence that the Court of Appeal stayed execution of the said judgement. Order 42 Rule 6(1) of the Civil Procedure Rules expressly provides that, “no appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order...” Thus, unless a stay of execution has been granted either by this Court or by the Court of Appeal, the decree remains valid and enforceable. 10.This position was confirmed by the Court of Appeal in Adiel Muriithi Philip v Thomas Maingi [2017] KECA 650 (KLR) where the court held that:“… The fact that the respondent had filed a notice of appeal in the High Court did not change this position as jurisdiction still remained with the High Court to deal with issues concerning the satisfaction of the decree. Indeed, Order 41 Rule 4 of the Civil Procedure Rules then in existence, stated as follows:“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order…..”(15)Therefore, without an order of stay of execution, either from the High Court or the Court of Appeal, the High Court remained seized of jurisdiction to deal with matters concerning the execution of the decree even where an appeal is pending in the Court of Appeal against the decree. The issue of the High court being functus officio does not therefore arise. 11.The doctrine of functus officio does not prevent a court from issuing facilitative orders to give effect to its own Judgement. This was authoritatively stated by the Supreme Court in the case of Raila Odinga & 2 Others V Independent Electoral And Boundaries Commission & 3 Others [2013] eKLR, thus “it is a legal and constitutional obligation of any court from the basic level to the highest level, to preserve and protect the adjudicatory form of governance and to uphold decoram and integrity in the scheme of justice delivery. It follows that the court’s jurisdiction in oversight of the conscientious and dignified management of the judicial process and in safeguarding the scheme of rendering justice, will not be exhausted until the court is satisfied and declares as much. Even though therefore the court concluded the hearing of the petition by delivery of Judgement, its jurisdiction for upholding the dignity of the judicial process and in relation to the proceedings of the petition remained uncompromised” 12.Accordingly it is my finding that as there are no orders of stay of execution, this court is properly seized of this application that seeks to give effect to a Judgement rendered by this court. The last issue for determination therefore is, whether the Applicant is entitled to the orders sought. 13.The judgment delivered on 20th February 2025 granted the Plaintiff / Applicant one-half of parcel No. Loitoktok/Ngama/210 measuring approximately 11.45 hectares. The Applicant has demonstrated that: a decree has been extracted, the decree has been served upon the relevant land office, the Land Registrar has initiated implementation and the County Surveyor requires a specific court order before carrying out the subdivision exercise. The orders sought are therefore necessary and incidental to enforcement of the decree already issued and thus warranted. 14.Regarding the prayer for police security, courts routinely invoke their inherent jurisdiction to direct the Officer Commanding Stations to provide security where there is demonstrated likelihood of resistance, hostility or breach of peace during execution of court orders. Such assistance ensures maintenance of law and order during implementation of decrees, which this Court deems justified and necessary. 15.As such purposes of implementing the judgment and decree of this Court delivered on 20th February 2025 the Court orders that:a.The County Surveyor, Loitokitok Sub County together with the Land Registrar, Loitokitok Sub County ,Kajiado County, shall survey, demarcate, subdivide and excise a portion measuring 11.45 hectares of Parcel No. Loitoktok/Ngama/210 in favour of the Plaintiff in accordance with the Judgment delivered on 20th February 2025 and the decree arising therefrom.b.Upon completion of the survey and subdivision exercise, the Land Registrar, Kajiado County shall register the excised portion measuring 11.45 hectares in the name of the Plaintiff/Applicant and issue the requisite title documents in accordance with the decree of this Court.c.The Officer Commanding Station (OCS), Loitoktok Police Station, shall provide adequate security during the survey, demarcation subdivision and registration exercise for the sole purpose of maintaining law and order.d.Costs of the application shall be borne by the 1st, 2nd and 3rd Defendants/Respondents. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 9TH DAY OF JULY 2026.JUDY OMANGEJUDGEIn The Presence Of:Mr Atito for Mr Odeny for Applicant.M/S Somen for Mr Chacha for Respondent.Peter – Court Assistant.