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ELCDismissed· [2020] KEELC 3156 (KLR)

Sheikha Mohamed Ali & 4 Others v Hamid Mohamed Abdulkadir [2020] KEELC 3156 (KLR)

Environment and Land Court
19 February 2020
CYC.K. Yano
1,763 words in judgment
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The bottom line

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A Mombasa court refused to undo an executed land judgment, confirming that once a decree is carried out, you must appeal rather than return to the same court.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (C.K. Yano, J) determined the Defendant's Notice of Motion dated 16th July 2019 seeking stay of execution of the judgment delivered on 11th May 2017, stay of orders dated 31st May 2019 and 11th July 2019, restoration into the premises, and return or compensation of properties seized or destroyed during eviction by Hamza Jeneby Auctioneers. Judgment had been entered for the plaintiffs granting vacant possession of parcel 619 Section 1 Mainland North, rent arrears of Kshs.1,209,500, mesne profits of Kshs.6,500 per month, and costs. An earlier stay application was refused on 6th February 2018 and a later one allowed on conditions on 14th January 2019. The defendant contended the conditions were met and the execution was irregular; the plaintiffs maintained the conditions were breached and that the court could not revisit its own judgment. The court held that the decree had been extracted and executed, perfecting the judgment, so the court was functus officio and the proper forum was a superior court. It further held the application was res judicata, being a repeat of the notice of motion dated 15th February 2018, under section 7 of the Civil Procedure Act and section 28 of the Environment and Land Court Act. The defendant's application was dismissed with costs.

Key legal issues

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01

Whether the court could grant further stay of execution and restoration/compensation orders

Holding

The application was dismissed; the court was functus officio and the application was res judicata

Reasoning

Judgment had been rendered and the decree extracted and executed, perfecting the judgment and ousting the court's jurisdiction to revisit the merits. The earlier notice of motion dated 15th February 2018 on stay of execution had already been heard and determined on conditions, so the fresh application was barred by section 7 of the Civil Procedure Act and section 28 of the Environment and Land Court Act. Issues going to the merits, such as the alleged subdivision of the suit property, could not be re-opened.

p. 2

Legal principles established

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  • A court becomes functus officio once its judgment has been perfected and executed; aggrieved parties must pursue appeal or review to a higher court
  • The doctrine of res judicata applies to applications, whether final or interlocutory, where the same issue between the same parties was previously determined

Court orders

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  1. 1.The Defendant's Notice of Motion dated 16th July 2019 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure Actsection 7
  • Environment and Land Court Actsection 28
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (Environment and Land Court Act, section 28 cited)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sheikha Mohamed Ali & 4 Others v Hamid Mohamed Abdulkadir [2020] KEELC 3156 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3156/eng@2020-02-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.