https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3619

Yegon v Sang & another (Environment and Land Case 54 of 2008) [2026] KEELC 3619 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3619 (KLR) Republic of Kenya In the Environment and Land Court at Kericho Environment and Land Case 54 of 2008 LA Omollo, J June 11, 2026 Between Wilson Malakwen Yegon Plaintiff and Peter Sang 1st Defendant Grace Maritim 2nd Defendant Ruling Introduction. 1.This ruling is in respect of the Plaintiff/Applicant’s Notice of Motion application dated 1st December, 2025. The application is expressed to be brought under Order 51 Rules 1& 3, Order 22 Rule 29 of the Civil Procedure Rules and Sections 3A & 63(e) of the Civil Procedure Act. 2.The application seeks the following prayers;a.Spentb.That the Honourable Court may be pleased to issue an order directing the OCS Brooke Police Station to render assistance to the Applicant to ensure compliance of an eviction order against the Defendant/Respondent to vacate the Plaintiff/Applicant’s parcel of land known as Kericho/Kipchimchim/2059 pursuant to this Honourable Court’s order dated 22nd day of February, 2024.c.That the Country Land Registrar, Kericho be directed to remove caution (sic) placed and registered against the land parcel Kericho/Kipchimchim/2059.d.That cost of this application be provided for. 3.The application is based on the grounds on its face and the supporting affidavit of the Plaintiff/Applicant which is sworn on 1st December, 2025. Factual Background. 4.The Plaintiff/Applicant commenced the present proceedings vide the Plaint dated 19th November, 2008 wherein he sought the following prayers;a.A declaration that the Defendants are trespassers on the Plaintiff’s land parcel number Kericho/Kipchimchim/2059 and an order that they deliver up vacant possession in default eviction order do issue.b.Mesne profits from 2004 till (sic) vacation.c.Cost of the suit and interest.d.Any other or further relief. 5.The 1st Defendant who is deceased and the 2nd Defendant/Respondent filed a joint Statement of Defence and Counterclaim dated 9th December, 2008 wherein they sought the following orders;a.That the Defendants (now the Plaintiffs) are the legally entitled to a portion of 128 ft x 122 ft to be excised from Kericho/Kipchimchim/2059. (sic)b.That the Plaintiff (now the Defendant) be compelled by this Honourable Court to execute the relevant documents and transfer the same to the Defendants (now Plaintiffs) to facilitate the transfer of the said portion to them and in default of this Court do nominate the Executive officer in place of the Plaintiff (now the Defendant).c.Costs of this Counter Claim be granted by this Honourable Court and any other relief that this Court deems fit to grant. 6.On 22nd February, 2024, the Court delivered judgement in the following terms;a.A declaration that the Defendant is a trespasser on the Plaintiff’s land parcel No. Kericho/Kipchimchim/2059 and therefore must deliver vacant possession within 30 days and in default an eviction order do issue.b.The Plaintiff shall also have the cost of the suit and Counterclaim with interest at Court rate. 7.The application under consideration first came up for hearing on 15th December, 2025 when the Court directed that it be served upon the Respondents. 8.The application came up for hearing on 2nd March, 2026 when the Court directed that it be canvassed by way of written submissions. 9.On 20th April, 2026 the application was mentioned to confirm filing of submissions and counsel for the Plaintiff/Applicant and the 2nd Defendant/Respondent informed the Court that they would not be filing submissions. 10.The application was then reserved for ruling. The Plaintiff/Applicant’s contention. 11.The Plaintiff/Applicant contends that on 22nd February, 2024, the Court delivered judgement in this matter and issued orders directing the Defendants/Respondents to vacate land parcel No. Kericho/Kipchimchim/2059 within thirty days. 12.The Plaintiff/Applicant also contends that on the same day he served the said judgement upon the Defendants/Respondents. 13.The Plaintiff/Applicant further contends that he sought the assistance of the OCS- Brooke Police Post to assist him in evicting the Defendants/Respondents from the suit parcel of land. 14.It is the Plaintiff/Applicant’s contention that the OCS – Brooke Police Post informed him that they could not evict the Defendants/Respondents because there were no express orders issued by the Court to that effect. 15.It is also the Plaintiff/Applicant’s contention that the Defendants/Respondents continued occupation of his land is detrimental to his property rights and will occasion him further loss and damage. 16.He ends his deposition by stating that he is seeking for the Court to issue orders to direct the OCS Brooke Police Station to ensure that the Defendants/Respondents comply with orders of the Court. The 2nd Defendant/Respondent’s Response 17.In response to the Plaintiff/Applicant’s application, the 2nd Defendant/Respondent filed a Replying Affidavit sworn on 23rd March, 2026. 18.She deposes that the Court delivered judgement on 22nd February, 2024. 19.She also deposes that she was dissatisfied with the said judgement and she therefore instructed her advocates on record to file a Notice of Appeal. 20.She further deposes that she filed a Notice of Motion application dated 16th March, 2024 and sought orders of stay of execution pending appeal. 21.It is her deposition that the Plaintiff/Applicant filed a Replying Affidavit to the said application and contended that he sold the suit property in order to get money to finance the present suit. 22.It is also her deposition that from the averments in the said Replying Affidavit, it is clear that the Plaintiff/Applicant has no interest in the suit parcel of land. 23.It is further her deposition that the Plaintiff/Applicant fraudulently transferred the suit parcel of land to Peter Okoth Oloo and one Chepkoech Irene. She goes on to state that the suit parcel of land was registered in their names on 5th June, 2014. 24.She deposes that she reported the matter to Brooke Police Post and she was given an OB number. 25.She also deposes that the Investigating Officer assigned to the matter filed Kericho Misc. Criminal Application No. E331 of 2024 and sought among other orders that the status quo be maintained. 26.She further deposes that the Court issued the said orders. 27.It is her deposition that the said order was served upon the Land Registrar and a caution registered on the suit parcel of land pending investigations as well as the hearing and determination of the criminal case. 28.It is also her deposition that the Plaintiff/Applicant interfered with the lands records thereby making it difficult for the Land Registrar to avail the parcel file during the hearing and determination of this suit. 29.It is further her deposition that her late husband was the registered owner of the suit parcel of land where they have lived since the 1970’s. 30.She deposes that it is in the interest of justice that the investigations officer from the Directorate of Criminal Investigations – Brooke Police Post be allowed to lawfully conduct investigations and if need be prefer criminal charges. 31.She also deposes that if the caution that has been lodged is removed, then the investigations by the Criminal Investigations Department will be interfered with. 32.She further deposes that it is in the interest of justice that the prayers sought should not be granted. 33.It is her deposition that she will suffer irreparable loss and damage if the orders sought are granted. 34.She reiterates that the Plaintiff/Applicant is not the registered owner of the suit parcel of land and he therefore lacks proprietary interest. 35.She ends her deposition by stating that the application under consideration has been filed in bad faith. Analysis and Determination. 36.I have considered the Plaintiff/Applicant’s Notice of Motion application, the response thereto and it is my view that the only issue that arises for determination is whether the Notice of Motion application dated 1st December, 2025 has merit. 37.The Plaintiff/Applicant contends that the Court delivered judgement on 22nd February, 2024 and issued orders of eviction against the Defendants/Respondents. 38.The Plaintiff/Applicant also contends that the said judgement was served upon the Defendants/Respondents but they are yet to vacate the suit parcel of land. 39.The Plaintiff/Applicant further contends that he sought the assistance of the OCS – Brooke Police Post to assist him in evicting the Defendants/Respondents but he was informed that the Court has to issue an order directing them to evict the Defendants/Respondents. 40.The Plaintiff/Applicant therefore seeks that an order be issued directing the OCS – Brooke Police Post to ensure compliance with the eviction order. This is prayer (b) of the application under consideration. 41.In response, the 2nd Defendant/Respondent contends that she filed an application seeking orders of stay of execution of the judgement of this Court and that a ruling was delivered on 22nd February, 2024. 42.The 2nd Defendant/Respondent also contends that the Plaintiff/Applicant transferred the suit parcel of land to Peter Okoth Oloo and Chepkoech Irene. 43.The 2nd Defendant/Respondent therefore contends that the Plaintiff/Applicant does not have proprietary interest in the suit parcel of land. 44.A perusal of the Court record shows that 2nd Defendant/Respondent filed a Notice of Motion application dated 16th March, 2024 wherein she sought orders of stay of execution of the judgement that was delivered on 22nd February, 2024. 45.On 21st November, 2024 the Court delivered a ruling on the said application and issued the following orders;a.Pending hearing and determination of the appeal filed by 2nd the Defendant/Applicants herein, a stay execution of the entire judgement of this Court delivered on the 22nd February, 2024 is hereby granted.b.The 2nd Defendant/Applicant shall deposit a sum of Kshs. 500,000/= as security for the due performance of the decree. The said amount shall be held in a fixed joint interest earning account in the names of counsel for both parties within 30 days of the date hereof.c.In the event of failure to comply with (b) above, the orders of stay shall lapse.d.The costs of this application shall be in the cause. 46.It is evident from the Court record that the Court issued orders of stay of execution of the judgement delivered on 22nd February, 2024 on condition that the 2nd Defendant/Respondent deposits a sum of Kshs. 500,000/= in a fixed joint interest earning account in the name of both counsel within thirty days. 47.As things remain, there are orders of stay of execution of the judgement delivered by this Court on 22nd February, 2024 and nothing has been placed before this Court to show that the condition attached to the orders of stay of execution has not been complied with. 48.That being the case, this Court declines to issue orders directing the OCS – Brooke Police Post to ensure compliance with the eviction orders. 49.Under prayer (c) of the application under consideration, the Plaintiff/Applicant seeks that the Court issues an order directing the Land Registrar-Kericho to remove a caution that was registered on land parcel No. Kericho/Kipchimchim/2059. 50.The 2nd Defendant/Respondent contends that the said caution was registered after the Court issued orders in Kericho Misc. Criminal Application No. E331 of 2024. 51.The 2nd Defendant/Respondent also contends the removal of the said caution will interfere with the investigations of the Directorate of Criminal Investigations with respect to the suit parcel of land. 52.It is important to note that firstly, the Plaintiff/Applicant is seeking the said order against the Land Registrar – Kericho who is not a party to the present proceedings. 53.Secondly, and as stated, judgement in this matter was delivered on 22nd February, 2024. 54.The Supreme Court in Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR) stated as follows on the doctrine of functus officio;“ 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].” (Emphasis mine) 55.The Court of Appeal in Telkom Kenya Limited v John Ochanda (Suing on His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited) [2014] KECA 600 (KLR) held as follows;“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a Court that rendered the final decision thereon.” 56.It is trite law that once a Court has determined a suit on merit it becomes functus officio. As was held in the above cited judicial decision, the doctrine of functus officio prevents the re-opening of a matter before a Court that rendered the final decision. 57.Consequently, it is my view that the Court having delivered its judgement, cannot consider whether or not an order should issue for the removal of the caution that was allegedly registered on the suit parcel of land as it is functus officio. 58.If at all the said caution was registered upon the issuance of a Court order, then the proper forum to seek for its removal will be in the proceedings pursuant to which the said order is alleged to have been issued. Disposition. 59.Taking the foregoing into consideration, I find that the Plaintiff/Applicant’s Notice of Motion application dated 1st December, 2025 lacks merit and it is hereby dismissed with costs. 60.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS11TH DAY OF JUNE, 2026.L. A. OMOLLOJUDGE.In the presence of: -Mr. Mutai for the Plaintiff/Applicant.Mr. Njoroge for Mr. Mwangi for the Defendant/Respondent.Court Assistant: Mr. Joseph Makori