Martin Wamalwa Barasa v Peter Okabiera Omwenga [2022] KEELC 513 (KLR)
The bottom line
#A Kenyan court refused to stop an eviction because only the court that issued the original judgment can challenge how it is enforced.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant has established a reasonable case with a probability of success for the injunction order he seeks to be issued at this interlocutory stage
- 2.Who pays the costs of the notice of motion
Key legal issues
#Whether the ELC can grant an injunction staying execution of a decree issued by another court
No - the jurisdiction to challenge execution vests in the court that issued the decree, so the ELC must disallow the application on grounds of jurisdiction alone
The Applicant's real complaint was that warrants to give possession issued in Eldoret CMCC No. 1454 of 2004 covered the wrong parcel. That is in substance an objection to execution, governed by Order 22 Rule 51, which vests in the issuing court. The decree had already survived appeal in Eldoret ELCA No. 66 of 2015 and CACA No. 46 of 2015, so this court was neither the issuing court nor properly positioned to set the decree aside.
Whether the application was res judicata / an abuse of process given the prior stay application in Eldoret ELCA No. 30 of 2020
Yes - the same relief on the same facts had been conclusively determined, and the fresh suit was an abuse of court process
The Applicant had previously sought stay of the same eviction on the same grounds in Eldoret ELCA No. 30 of 2020 and failed, without appealing. Pursuing identical reliefs against the same party after refusal by a competent court delays the Respondent's enjoyment of property confirmed through three tiers of litigation and constitutes an abuse of process.
Whether the interlocutory injunction criteria needed consideration
No - once jurisdiction is wanting, the court need not consider the merits of the injunction
Since the court concluded it lacked jurisdiction over the execution challenge, there was no need to proceed to assess whether a prima facie case, irreparable harm and balance of convenience had been established for the temporary injunction.
Legal principles established
#- The jurisdiction to challenge execution of a decree, including by objection to attachment, vests in the court that issued the decree
- Instituting fresh proceedings to obtain relief already refused by a court of competent jurisdiction is an abuse of court process
Court orders
#- 1.The notice of motion dated 3rd November 2021 is dismissed
- 2.The Applicant to pay the Respondent's costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction; Order 40 Rule 1 and Order 22 Rule 51 of the Civil Procedure Rules
Relief refused
#Temporary injunction restraining eviction, demolition and interference with NZOIA/MOI'S BRIDGE BLOCK 1 (NZOIA SISAL) 3582 pending hearing of the main suit
The court lacks jurisdiction to stay execution of a decree issued by another court, and the application is an abuse of process having already been determined in Eldoret ELCA No. 30 of 2020
Costs
The Applicant to pay the Respondent's costs under section 27 of the Civil Procedure Act (Cap 21); application dismissed with costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That according to Order 22 Rule 51 of the Civil Procedure Rules, the jurisdiction to challenge execution vests in the court that issued the decree.
It is an abuse of the court process to institute several proceedings in order to challenge the same action and the court has inherent jurisdiction to prevent such abuse.
The application is further an abuse of the court's process and is therefore dismissed with costs.
Issues in the judgment
#The judgment inconsistently refers to the parcel number as 3852 in the prayer quoted and 3582 elsewhere
The lower court case is referred to as both Eldoret CMCC No. 1454 of 2004 and Eldoret ELC CMCC No. 1454 of 2020
Eldoret ELCA No. 66 of 2015 and Eldoret CACA No. 46 of 2015 appear chronologically inconsistent, with a 2020 appeal (ELCA No. 30 of 2020) referencing the 2015 appeals
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Wamalwa Barasa v Peter Okabiera Omwenga [2022] KEELC 513 (KLR)", Case Analysis (2022). Notice of Motion dated 3rd November 2021 (Eldoret ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/513/eng@2022-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.