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ELCAllowedEnvironment & Land Case 303 of 2019· [2023] KEELC 17118 (KLR)

Nderu v Ng'ang'a

Environment and Land Court
25 April 2023
MMM D Mwangi
1,381 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (M D Mwangi, J) determined a Notice of Motion dated March 19, 2023 by the Plaintiff/Decree-holder under Order 22 Rule 29(3) of the Civil Procedure Rules, seeking an order that court bailiffs, assisted by the OCS Ongata Rongai Police Station, remove the Defendant/Judgment-Debtor from LR No Ngong/Ngong/5677 and put the Plaintiff in possession. The Plaintiff relied on an eviction order issued on September 27, 2022, giving the Defendant 45 days to vacate, and on the dismissal of her stay applications both in the High Court and the Court of Appeal, leaving no order staying execution. The Defendant opposed the application through grounds of opposition and a replying affidavit, contending that the pending appeal in the Court of Appeal divested the court of jurisdiction, that the application amounted to amending the plaint without leave, and that the court was functus officio. The court framed two issues: whether it was functus officio, and whether the Plaintiff was entitled to the orders sought. Applying the Court of Appeal's decision in Telkom Kenya Limited v John Ochanda, the court held that execution applications are a recognised exception to the functus officio doctrine. Finding a lawful decree that the Defendant had failed or refused to obey, the court allowed the application, ordered the bailiffs with police assistance to evict the Defendant and her agents and put the Plaintiff in possession, and awarded costs to the Plaintiff.

Key legal issues

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01

Whether the court was functus officio in entertaining an execution application

Holding

The court was not functus officio; execution applications are a recognised exception to the doctrine.

Reasoning

Relying on the Court of Appeal's decision in Telkom Kenya Limited v John Ochanda as cited in Alderman Limited v Zaverchand Ramji Shah, the court noted that functus officio bars merit-based re-engagement with a decided case but does not bar post-judgment proceedings such as stay, correction of decree, accounts, execution including garnishee, review and Section 34 applications. The Plaintiff's application was in furtherance of execution of the decree and therefore within the exceptions.

p. 3
02

Whether the Plaintiff was entitled to an order for removal of the Defendant and delivery of possession

Holding

Yes. The Plaintiff had a lawful decree requiring the Defendant to vacate within 45 days, which the Defendant refused to obey, entitling the Plaintiff to the orders sought under Order 22 Rule 29.

Reasoning

The court found that an eviction order was issued on September 27, 2022, giving the Defendant 45 days to vacate. Stay applications in the High Court and Court of Appeal had been dismissed, so no stay was in place. The Defendant remained in possession by force and threats of violence. Having demonstrated a lawful decree and the Defendant's refusal to abide by it, the Plaintiff was entitled to assistance of the court in executing the decree for possession.

p. 3

Legal principles established

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  • Applications for execution of a decree fall within the recognised exceptions to the functus officio doctrine; a court that has entered final judgment may still engage with execution proceedings.

Court orders

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  1. 1.Court bailiffs, with the assistance of the OCS Ongata Rongai Police Station, to remove the Defendant/Judgment-Debtor, her agents, nominees or anybody claiming through her from parcel Ngong/Ngong/5677 and put the Plaintiff in possession
  2. 2.Costs of the application awarded to the Plaintiff/Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 29(3)
  • Civil Procedure ActSection 34

Cases cited (3)

  • Republic v Ahmed Abolfathi Mohammed & another
    (2018) eKLR

    That the dignity and authority of courts must be upheld at all times for maintenance of the rule of law and order.

  • Alderman Limited v Zaverchand Ramji Shah & 3 others
    Nairobi ELC Civil Appeal E004/2021

    Reference to the Court of Appeal's exposition of the functus officio doctrine and its exceptions.

  • Telkom Kenya Limited v John Ochanda
    (2004) eKLR

    Definition of functus officio and the exceptions to the doctrine, including execution applications.

Jurisdiction invoked
Order 22 Rule 29(3) of the Civil Procedure Rules (execution of decree for possession)

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, "Nderu v Ng'ang'a", Case Analysis (2023). Environment & Land Case 303 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17118/eng@2023-04-25

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