Sammy Inguvu Isigi v Alphonis Samuel Makomere [2022] KEELC 908 (KLR)
The bottom line
#A Kenyan court cannot order eviction that was never claimed or granted in a decree, and delayed stay applications will fail.
What this practically means
#Executive summary
#Key legal issues
#Whether an eviction order could issue in execution of the decree
No. The decree contained no eviction order and eviction was not pleaded in the plaint; granting it would be modifying the decree without jurisdiction.
The court examined the 2018 judgment and the plaint and found that only a declaration of breach, termination of tenancy and costs were granted and claimed. Judgment concluded the substantive dispute, rendering the court functus officio. Ordering eviction would impermissibly modify the decree; the application was therefore a nullity and struck out.
Whether the defendant met the conditions for stay of execution pending appeal
No. Substantial loss was not demonstrated since the decree contains no eviction order, and the application was filed after an unreasonable delay of over two and a half years; no security was addressed and the defendant filed no submissions.
Under Order 42 rule 6, an applicant must show substantial loss, absence of unreasonable delay and furnish security. The feared eviction does not arise from the decree. The stay application was filed on 10th August 2021, over two and a half years after the ruling of 20th November 2018 appealed from, and the defendant advanced no arguments on the application.
Legal principles established
#- A court becomes functus officio after delivering judgment and cannot vary or revoke its own decision save through setting aside or review
- Jurisdiction flows from the Constitution or legislation, and steps taken without jurisdiction are a nullity
- Stay pending appeal requires demonstration of substantial loss, absence of unreasonable delay, and security for due performance of the decree
Court orders
#- 1.Notice of Motion dated 24th June 2021 is struck out
- 2.Notice of Motion dated 30th July 2021 is dismissed
- 3.No order as to costs of both applications
- Jurisdiction invoked
- Court's jurisdiction flows from the Constitution or legislation (order invoked under Order 22 Rule 6 and Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sammy Inguvu Isigi v Alphonis Samuel Makomere [2022] KEELC 908 (KLR)", Case Analysis (2022). Not stated in judgment (Kakamega ELC suit; associated with Court of Appeal Civil Appeal Number 13 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/908/eng@2022-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.