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ELCDismissedNot stated in judgment· [2021] KEELC 3598 (KLR)

OCS Serem v Patrick Malongo Lidovolo; Luice Asang’asa & 2 others (Defendants) [2021] KEELC 3598 (KLR)

Environment and Land Court
20 April 2021
NMN.A. Matheka
334 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to pause eviction orders to allow police investigations, ruling that once judgment is delivered, only the Court of Appeal can change it.

What this practically means

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Executive summary

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The applicant moved the court by an application dated 18th January 2021 seeking two orders: that the court release the OCS Serem for such time as the court deemed fit, and that the orders dated 16th December 2020 be stayed. The application was grounded on the claim that the DCI Hamisi sub-county needed to conduct full investigations into the transfer of land parcel Kakamega/Shamakhokho/1442 and into land parcel Kakamega/Shamakhokho/369, which was believed not to have undergone the full process of succession. The respondent opposed the application, submitting that by an order dated 15th December 2020 the court had directed the OCS Serem Police Station to evict the defendants from parcel Kakamega/Shamakhokho/1442; that the applicant was not a party to the case and lacked locus standi; and that only the Court of Appeal could quash, review or set aside the judgment. Matheka J observed that judgment had been rendered on 24th June 2020, ordering the defendants to vacate the suit parcel within 90 days, in default of which execution would issue; that no appeal was filed within the stipulated time and no leave to appeal out of time was granted; and that orders of the court cannot be made in vain. The court held it had no jurisdiction to order investigations into a matter over which it had passed judgment, concurred that only the Court of Appeal could disturb the judgment, characterised the application as frivolous and an abuse of court process, and dismissed it on 20th April 2021. No costs order was stated.

Key legal issues

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Whether a court can stay or reopen its own final judgment to allow police investigations

Holding

No - the court became functus after judgment; absent an appeal or leave to appeal out of time, the judgment stands

Reasoning

Judgment was rendered on 24th June 2020 ordering defendants to vacate within 90 days, in default execution to issue. No appeal was filed within the stipulated time and no leave to appeal out of time was granted. The court held that orders cannot be made in vain and that only the Court of Appeal could disturb the judgment, concurring with the respondent's submissions.

p. 2

Legal principles established

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  • A court of first instance has no jurisdiction to order investigations into a matter over which it has already passed judgment; only the Court of Appeal can quash, review or set aside such a judgment

Court orders

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  1. 1.The application dated 18th January 2021 is dismissed
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel Kakamega/Shamakhokho/1442

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, "OCS Serem v Patrick Malongo Lidovolo; Luice Asang’asa & 2 others (Defendants) [2021] KEELC 3598 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3598/eng@2021-04-20

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