https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3138

Waswa v Nyongesa (Environment and Land Case 43 of 2001) [2026] KEELC 3138 (KLR) (11 May 2026) (Ruling) Neutral citation: [2026] KEELC 3138 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Environment and Land Case 43 of 2001 AK Bor, J May 11, 2026 Between Zakayo Waswa Plaintiff and Mellitus Charles Nyongesa Defendant Ruling 1.Through the application dated 20/1/2026, the Plaintiff seeks leave for the firm of Akhaabi Advocates to come on record for him after judgment and for the notice of change of advocates dated 19/1/2026 to be deemed as duly filed. The Plaintiff seeks an order for eviction and vacant possession directed at the Defendant, his family members, relatives, agents, servants, employees or any other person claiming through him and for the Defendant to vacate and hand over vacant possession of the land known as West Bukusu/North Mateka/77 (the suit land) to the Plaintiff within 14 days. In default, that the Officer Commanding Bumula Police Station and Bungoma County Police Commander do provide security to the Plaintiff and auctioneers to effect the eviction and removal of the Defendant, his family members, relatives, agents, servants, employees or any other person claiming through him and all his development and improvements from the suit land to ensure compliance with the decree of the Court of Appeal. The Plaintiff sought the costs of the application and for the execution proceedings costs to be borne by the Defendant. 2.The grounds on which the application was made were that the Court of Appeal delivered a final judgment on 23/6/2023 in Civil Appeal No. 49 of 2018, vide which it set aside the decision of this court and declared the Plaintiff the proprietor of the suit land. Further, that the appellate court found that the Defendant fraudulently acquired the suit land through forgery of transfer documents and as such, he was a trespasser on the suit land. Following the decree of the Court of Appeal, the Plaintiff was restored as the registered proprietor of the suit land. He contended that the Defendant’s continued occupation of the suit land was a continuing trespass and a blatant disregard for the sanctity of the court decree. That the Defendant was served the decree and notice to vacate dated 17/11/2023 yet he refused to yield possession. 3.It was urged that being the court of first instance, this court retained the jurisdiction to execute and enforce the decree of Court of Appeal to ensure the ends of justice were met. Further, that it was necessary to give practical effect to the judgment of the Court of Appeal, which had definitively settled the question of ownership of the suit land in favour of the Plaintiff and that the right to possession followed title as an inevitable legal consequence. The Plaintiff submitted that the application complied with Sections 152 A, B and G of the Land Act. 4.The Plaintiff swore the supporting affidavit and exhibited a copy of the title over the suit land, which the court notes was issued to him on 10/11/2023. He also exhibited a copy of the judgment of the Court of Appeal together with photographs of the suit land. He deponed that the Defendant had wrongfully remained in occupation of the suit land and had commenced cultivation and construction of a perimeter wall and other permanent structures on the suit land. 5.The Plaintiff submitted that the application was fundamentally a post judgment execution process seeking to give practical effect to the final judgment and decree of the Court of Appeal delivered on 23/6/2023 in Kisumu Civil Appeal No. 49 of 2018 vide which the court of appeal declared the Defendant’s title fraudulent, null and void and restored absolute proprietorship to the applicant. 6.That after the Court of Appeal ordered cancellation of the Defendant’s registration, the land register had been rectified and a title deed had been issued to the Plaintiff. The Plaintiff argued that despite the finality of the pronouncement of the Court of Appeal and service of the notice to vacate dated 17/11/2023, the Defendant had obstinately refused to yield vacant possession and instead had remained in an unlawful application and commenced construction of permanent structures that will alter the character of the suit land. He argued that the Defendant had filed a replying affidavit in which he raised procedural issues, mainly that the Court of Appeal did not expressly order eviction and that the Defendant had filed a notice of appeal at the Supreme Court. 7.The Plaintiff contended that the Court of Appeal was not an executing court and that the mandate to execute and enforce the decree once the appellate process was concluded reverted to the court of first instance. He relied on Ngaira v Chengoli [2022] KECA 80 (KLR) in which the Court of Appeal emphasized that the trial court retained the exclusive jurisdiction to execute and enforce the decrees of the superior courts to ensure that litigation came to a final and effective conclusion. The Plaintiff relied on Section 34 of the Civil Procedure Act, which requires that all questions arising between parties relating to the execution, discharge or satisfaction of a decree be determined by the executing court and not in a separate suit. 8.The Plaintiff argued that an order for vacant possession and eviction was a natural and inescapable consequence of a declaration of title and that where a court declared a party to be the lawful owner of the property, the right to possession automatically followed that title. The Plaintiff cited decisions where the courts have held that a court has an inherent duty to grant orders that give practical effect to its judgment and that to deny him an order of eviction merely because it was not explicitly stated in the judgment of the appellate court would render the decree a brutum fulmen and give him a hollow victory. 9.The Plaintiff submitted that the procedural mechanics for the relief were provided under Order 22 Rule 29 of the Civil Procedure Rules which stipulates that where a decree is for the delivery of immovable property, the court is authorized to deliver possession to the adjudged manner by removing any person bound by the decree who refuses to vacate. 10.The Plaintiff pointed out that the Defendant’s pending application for enlargement of time to apply for a certificate to lodge an appeal at the Supreme Court did not operate as a stay of execution. He urged that Order 42 Rule 6 (1) of Civil Procedure Rules and Rule 32 of the Supreme Court Rules stipulated that no appeal or second appeal operated as a stay of execution or proceedings under a decree appealed from unless a competent court issued a specific order to that effect. 11.The Plaintiff went on to argue that in Saina v Makokha [2023] KEHC 243 (KLR) and National Oil Corporation v Albusaidy [2022] KECA 79 (KLR) the court established that once a title was cancelled on grounds of fraud or illegality, the status of the occupier automatically reverted to that of a trespasser. He emphasised that the Defendant had no basis for remaining on the suit land and that his continued occupation was a continuing trespass. He added that out of abundance of caution, he complied with the statutory prerequisites for evicting an unlawful occupier mandated by Section 152 A, B and G of the Land Act. 12.The Defendant submitted that injunctive orders were remedies available under Order 40 of the Civil Procedure Rules and Section 63 of the Civil Procedure Act. He urged that the court could not grant an injunction without it having been pleaded and awarded by the superior court. He argued that the superior court in its judgment specified the award but did not grant any of the orders which the Plaintiff now seeks. He argued that the Plaintiff had crafted additional orders which were not part of the decree or judgment in Kisumu Court of Appeal case no. 49 of 2001. He was emphatic that the orders of eviction and injunction did not form part of the orders issued by the Court of Appeal and that the orders granted were only limited to declaratory orders and orders of cancellation of title over West Bukusu/North Mateka/77. 13.The Defendants submitted that the Court of Appeal only allowed a portion of the appeal and the orders to be applied. The other point urged by the Defendant was that the judgment delivered by judge Mukunya found that the pleadings filed by the Plaintiff were filed out of time and he struck out the plaint on 22/2/2018. He therefore argued that the question of the suit having been struck out was not addressed by the Court of Appeal and remained unresolved. He argued that the Plaintiff filed an appeal following the dismissal of Bungoma ELC Case No. 15/2024 which sought eviction and that the Plaintiff could not seek a remedy in another suit which was struck out while filing an appeal over the same issue and still seeking relief from this court. He urged that the question of cancellation of title and issuance of a notice of eviction were ambiguous and not properly pleaded. Further, he contended the Plaintiff could not seek to have the suit land registered in his name if it was already registered. Lastly, the Defendant contended that he had filed an application for stay of execution pending leave to challenge the order of dismissal in the Supreme Court and that it would be unfair and unjust to him if this court were to enforce the orders issued by the Court of Appeal when that court had given directions on the application for stay pending the application for enlargement of time in the Supreme Court. The Defendant was emphatic that this court could only enforce orders awarded by the superior court contained in the decree and not incidental orders. 14.The issue for consideration is whether the court should grant the orders sought in the application dated 201/2026. The Defendant reproduced the orders made by the Court of Appeal in his submissions. The Court stated that the appeal partly succeeded and the orders of the learned judge were substituted with a declaration that the registration of the Defendant as the proprietor of the suit land was fraudulently done and unlawfully obtained hence the Plaintiff was still the rightful and lawful owner of the suit land. The Court of Appeal directed the Defendant to transfer the suit land to the Plaintiff failing which the Deputy Registrar of the court was authorized and empowered to execute all documents necessary to transfer and restore the suit land to the Plaintiff. The court also awarded the Plaintiff the costs of the appeal and of the High Court. 15.It would be an absurdity if this court were to sanction the continued occupation of the suit land by the Defendant after the Court of Appeal delivered its judgment and a decree pursuant to which the Plaintiff was registered as the owner of the suit land. The registration of the Plaintiff as the owner of the suit land vests in the Plaintiff the absolute ownership of the land together with all the rights and privileges belonging thereto according to Section 24 of the Land Registration Act. That includes the right of possession or physical occupation of the suit land. 16.No orders for stay of execution of the orders made by the Court of Appeal have been granted to the Defendant. 17.The Defendant’s contention that the question of the suit having been struck out was not addressed by the Court of Appeal and remained unresolved is a matter that should he have taken up before the Court of Appeal. That is not a question that this court can address after the Court of Appeal made a determination of the matter. 18.The court grants prayers 2, 4 and 5 of the application dated 20/1/2026. The Plaintiff is awarded the costs of the application. DELIVERED VIRTUALLY AT BUNGOMA THIS 11TH DAY OF MAY 2026.K. BORJUDGEIn the presence of: -Mr. Chrysostom Akhaabi for the PlaintiffMr. Andrew Kituyi for the DefendantCourt Assistant- Josephat Bett