Wafula v Obilo & 4 others (Environment and Land Case 28 of 2005) [2026] KEELC 4922 (KLR) (30 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC CASE NO. 28 OF 2005** **RODGERS JOAB WAFULA …………………. PLAINTIFF/APPLICANT** **= VERSUS =** 1. **DOROTIA NELIMA OBILO** 2. **PATRICK KILO OCHIENG** 3. **RICHARD MUGENI OCHIENG** 4. **SHIKUKU KUSIMBA** 5. **REBECCA OYIERA …………. DEFENDANTS/RESPONDENTS** **R U L I N G** 1. Before this Honourable Court for determination is the Notice of Motion dated 28th July 2026. The Applicant, Rodgers Joab Wafula, sought certification of the application as urgent, an injunction restraining the Respondents or any other person from burying human remains on Land Parcel **NO. SAMIA/BUBURI/216** pending the hearing and determination of the application, and an order directing the Officer Commanding Station (OCS) Siaya Port and the Sub-County Police Commander, Samia, to show cause why they should not be cited for contempt for allegedly failing to enforce the court’s eviction orders. He also sought costs of the application. 2. The application is supported by the Applicant’s affidavit dated 28th July 2026 and sworn on the even date, in which he depones that judgment was delivered in his favour on 16th December 2021, ordering the Respondents’ eviction from the suit land. 3. Although the court subsequently granted a conditional stay of execution requiring the Respondents to deposit Kshs. 250,000 as security within ninety days, they allegedly failed to comply with that condition, thereby rendering the stay ineffective. 4. He avers that despite several letters to the Inspector General of Police, the Busia County Police Commander and the Samia Sub-County Police Commander seeking enforcement of the eviction orders, the police had failed to act. 5. The Applicant further states that he had recently learnt that the 1st Respondent, Dorotia Nelima Obilo, had died and that her family intended to bury her on the suit property. He contends that such burial would interfere with his proprietary rights and frustrate the execution of the judgment and eviction orders. 6. He maintains that the intended burial would occasion him irreparable loss, alter the character of the suit property and render the fruits of his judgment worthless. He therefore urges the court to preserve the land by restraining the burial and to compel the police officers to explain their continued failure to enforce the court orders. **THE RESPONDENT`S CASE:** 1. The Replying Affidavit was sworn by the 2nd Respondent, Patrick Kilo Ochieng, on behalf of the Respondents in opposition to the application. 2. He depones that the Applicant is using the unfortunate death of the 1st Respondent to advance his personal interests by seeking to stop her burial while simultaneously pursuing contempt proceedings against the police. 3. He contends that the court is functus officio, having already rendered judgment, reviewed its decision and granted stay orders, and that any further grievances should be addressed before the Court of Appeal in Kakamega in Civil Appeal **NO. COA CA E120** of **2026**, where the appeal remains pending. 4. The Respondent further avers that the Applicant has failed to demonstrate any irreparable harm that would result from the burial, whereas denying the family the opportunity to bury the deceased on what they consider her ancestral land would occasion irreversible prejudice incapable of compensation. 5. He also disputes the Applicant’s allegations regarding the police’s failure to enforce the orders, arguing that those allegations are unsupported and insufficient to warrant the relief sought. He therefore prays that the application be dismissed with costs. **ORAL SUBMISSIONS** 1. The Applicant, Mr. Rodgers Joab Wafula submitted that the dispute has been pending since 2005 and culminated in a judgment in his favour after approximately sixteen years. He stated that despite obtaining eviction orders, the Respondents had refused to vacate the land and had continued to resist execution. 2. He informed the court that preparations for the burial of the deceased had already commenced, including the digging of a grave, making the intended burial imminent. He argued that the land belongs to him and that permitting the burial would further frustrate the enforcement of the judgment. 3. In response to the Respondents’ reliance on the pending appeal, he submitted that the burial application raises a fresh issue and emphasized that the deceased’s husband and daughters had previously been buried on Land Parcel **NO. SAMIA/BUGENGI/215**, not on the suit property. He maintained that no person should be buried on his land without his consent. 4. On behalf of the Respondents, Mr. Ochieng relied on the Replying Affidavit sworn on 29th July 2026. He submitted that this court is functus officio because it had already rendered judgment, reviewed it and granted stay orders, and that the dispute over the suit property is now the subject of an active appeal before the Court of Appeal in **COA CA E120** of **2026**. 5. He argued that the Applicant had not demonstrated any irreparable injury that could not be compensated by damages. Conversely, he contended that if the injunction were granted, the deceased would be permanently denied her ancestral burial rights, a loss incapable of being remedied by any subsequent court order. He therefore urged the court to dismiss the application and adopt the contents of the Replying Affidavit in their entirety. **ANALYSIS AND DETERMINATION:** 1. I have considered the Notice of Motion dated 28th July 2026 and the only issue for determination is **whether this Court has jurisdiction and power to issue post-judgment preservatory orders restraining the burial of the deceased on Land Parcel No. SAMIA/BUBURI/216 pending the hearing and determination of the appeal, so as** **to preserve the suit property and safeguard the efficacy of its judgment.** 2. The issue for determination is whether this Court retains jurisdiction to issue post-judgment preservatory orders restraining the intended burial of the deceased on Land Parcel **NO. SAMIA/BUBURI/216** pending the hearing and determination of the appeal, with a view to preserving the suit property and safeguarding the efficacy of its judgment. 3. The Respondents contend that this Court is *functus officio* and therefore lacks jurisdiction to entertain the present application because judgment was delivered on 16th December 2021, the Court subsequently rendered a ruling on 26th January 2023 granting a conditional stay of execution pending appeal, and an appeal is now pending before the Court of Appeal. The Court is therefore called upon to determine whether its jurisdiction was exhausted upon delivery of judgment or whether it retains a residual jurisdiction to make orders necessary to preserve the subject matter of the litigation and protect the integrity of its own decree. 4. The doctrine of functus officio dictates that once a court has conclusively determined a matter, it cannot reopen the merits of its decision except as provided by law. The principle was succinctly explained by the Supreme Court in **Raila Odinga & 2 Others -v- Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR**, where the Court stated: **“The doctrine of functus officio 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.”** 1. However, the doctrine does not completely divest a court of jurisdiction after judgment. A court retains residual or incidental jurisdiction to issue consequential and preservatory orders necessary to give effect to its judgment, prevent its process from being abused, and ensure that its decree is not rendered nugatory. Such jurisdiction does not amount to reopening the merits of the dispute but merely facilitates the effective implementation and protection of an existing judgment. 2. In the case of **[Erinford Properties Ltd -v- Cheshire County Council (1974) 2 All ER 448](https://malaysianlitigator.com/2020/12/22/the-erinford-injunction-maintaining-status-quo-pending-appeal/%22%20%5Cl%20%22%3A~%3Atext%3DIts%20name%20comes%20from%20the%2Ca%20separate%20planning%20application%20for%22%20%5Ct%20%22_blank)** the court held that**:** **“I cannot see why the judge who has dismissed the action should, because he has decided the case against the plaintiff, be unable to grant an injunction pending appeal. The purpose is to preserve the status quo until the appeal is heard.”** 1. In the present case, there is no dispute that this Court, by its judgment dated 16th December 2021, declared the Applicant entitled to Land Parcel **NO. SAMIA/BUBURI/216**, ordered the Defendants to vacate the land within one hundred and twenty (120) days, failing which eviction was to issue, and permanently restrained them, whether by themselves or through their agents, from entering, occupying or in any manner utilizing the suit property without the Applicant’s consent or authority. Those orders remain valid and binding unless set aside or stayed by a competent court. 2. It is not a persuasive argument by the Respondent that the mere existence of a pending appeal conferred upon them the right to inter the deceased on the Applicant’s land. The filing of an appeal does not, of itself, operate as a stay of execution or suspend the legal effect of a judgment. This principle is firmly anchored in **Order 42 Rule 6(1)** of the **Civil Procedure Rules**, which expressly provides that no appeal shall operate as a stay of execution unless the court so orders. Where, as in the present case, a stay was granted subject to conditions which were never fulfilled, the decree remained enforceable in accordance with its terms. 3. The intended burial is not an ordinary act. Burial creates a permanent physical occupation of land and invariably alters its character. If permitted on land which has already been adjudged to belong to the Applicant, it would fundamentally undermine the judgment by reintroducing into the suit property a form of occupation that the Court expressly prohibited through the permanent injunction. It would also generate fresh disputes concerning exhumation, cultural rights and occupation, thereby frustrating the execution of a decree that has remained unsatisfied for several years. 4. The Court cannot ignore the practical consequences of allowing the burial. While the appeal remains pending, the Respondents possess no decree, order or stay authorizing them to re-enter, occupy or utilize the Applicant’s land. Their occupation was declared unlawful by the judgment of this Court, and absent a valid stay, they cannot derive rights from a pending appeal that neither the judgment nor the law has conferred upon them. To hold otherwise would permit litigants to circumvent court decrees merely by filing appeals while disregarding the conditions imposed for obtaining a stay. 5. The Applicant has demonstrated that the grave has already been prepared and that the burial is imminent. Once the burial is conducted, the alteration to the suit property would be irreversible except through the drastic and undesirable process of exhumation. Such a development would substantially diminish the efficacy of the judgment and complicate its enforcement. The Court is therefore entitled, indeed obliged, to exercise its residual jurisdiction to preserve the suit property pending the determination of the appeal so that the judgment it rendered is not defeated by subsequent events. 6. This Court is therefore satisfied that granting a temporary preservatory injunction does not amount to reviewing, varying or sitting on appeal against its judgment. Rather, it constitutes a proper exercise of its inherent jurisdiction under **Sections 1A, 1B** and **3A** of the **Civil Procedure Act** to protect the subject matter of the litigation, uphold the authority of its decrees, prevent abuse of its process and ensure that the pending appeal is not overtaken by irreversible events. 7. Accordingly, this Court finds that it retains jurisdiction to issue appropriate post-judgment preservatory orders. In the absence of a valid stay of execution and in view of the Respondents’ failure to comply with the conditions imposed in the ruling of 26th January 2023, the intended burial on Land Parcel **NO. SAMIA/BUBURI/216** cannot be sanctioned. Preserving the suit property pending the determination of the appeal safeguards both the integrity of this Court’s judgment and the appellate process without conferring upon the Respondents rights that they neither possess under the decree nor acquired through the mere filing of an appeal. **DECLARATION AND FINAL ORDERS** 1. Having carefully considered the Notice of Motion dated 28th July 2026, the supporting affidavit, the Replying Affidavit, the rival oral submissions, the record of this Court, and the applicable law, I am satisfied that this Court retains residual jurisdiction to issue appropriate post-judgment preservatory orders necessary to protect and preserve the subject matter of the dispute and to safeguard the efficacy of its judgment. I further find that the judgment delivered on 16th December 2021, together with the permanent injunction issued therein, remains valid and enforceable. 2. The pendency of an appeal, without a valid stay of execution, does not confer upon the Respondents any right to enter, occupy or utilize the Applicant’s land, including by interring the remains of the deceased thereon. To permit such burial would irreversibly alter the character of the suit property, undermine the decree of this Court, and potentially render the appeal and the judgment susceptible to unnecessary complications. However, prayer 2 of the Notice of Motion is declined on the ground that there is nothing on record to show that there is noncompliance on the part of the police to enforce the orders of eviction. 3. Accordingly, the Notice of Motion dated 28th July 2026 is meritorious and is hereby allowed on the following terms: 4. **An order is hereby issued restraining the Respondents, their agents, servants, family members or any other persons acting under their instructions from burying or causing the burial of the remains of the late Dorotia Nelima Obilo on Land Parcel No. SAMIA/BUBURI/216.** 5. **The costs of the application shall be borne by the Respondents.** 6. **It is so ordered.** **Ruling dated, signed and delivered in open Court on this 30th day of July 2026.** **C. MUGAMBI** **JUDGE** **30TH JULY 2026**