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ELCStruck OutELC case transferred from HCCC No. 49 of 2012 (Kakamega), current number as stated in 2021· [2024] KEELC 674 (KLR)

Shikhaya v Shikhaya (Environment & Land Case 15 of 2021) [2024] KEELC 674 (KLR)

Environment and Land Court
15 February 2024
DOD. O. Ohungo
794 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kakamega court struck out a bid to transfer a land decree to a different parcel, confirming courts cannot rewrite judgments to cover land never originally pleaded.

What this practically means

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Executive summary

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This ruling by D. O. Ohungo J of the Environment and Land Court at Kakamega, dated 15th February 2024, determines a Notice of Motion dated 4th April 2020 filed by the defendant, Shaban Taabu Shikhaya, in litigation between brothers originally filed in the High Court at Kakamega as HCCC No. 49 of 2012 and later transferred to the ELC. The underlying suit had been decided on 18th September 2014, with the court ordering that the suit land, S. Wanga/Ekero/2491, be subdivided and one acre transferred to the defendant. By the application, the defendant sought leave for new advocates, a conservatory order restraining dealings on parcel South Wanga/Ekero/4349, and amendment of the decree of 29th September 2014 so that it referred to parcel 4349 instead of 2491, alleging the plaintiff had subdivided the original parcel, rendering execution impossible. The plaintiff did not respond despite service. The court framed two issues: jurisdiction and whether the orders should issue. Applying Samuel Kamau Macharia, Owners of the Motor Vessel 'Lillian S' and Raila Odinga, it held that jurisdiction flows only from the Constitution or legislation, that a court becomes functus officio after final judgment, and that a decree cannot be 'leapfrogged' from one parcel to another where the parcel sought was never pleaded. The application was struck out with no order as to costs, given the family relationship and the plaintiff's non-resistance.

Key legal issues

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01

Whether the court retains jurisdiction after final judgment to amend its decree

Holding

The court is functus officio after delivering final judgment and cannot amend the decree to substitute a different parcel of land

Reasoning

The matter was heard and judgment delivered on 18th September 2014 concerning South Wanga/Ekero/2491. The applicant sought to have the decree read as applying to South Wanga/Ekero/4349, a parcel never pleaded. The court held that once judgment is delivered its power to determine the claims is spent; if the decree cannot be enforced, the party must consider a fresh suit rather than leapfrogging the decree onto a different parcel.

p. 2
02

Whether the court could entertain a conservatory order over a parcel not subject of the suit

Holding

No; such an enquiry concerns matters not placed before the court by the parties and falls outside its jurisdiction

Reasoning

The suit as pleaded concerned parcel 2491 only. The defendant sought conservatory orders and amendment of the decree over parcel 4349, allegedly the parcel he physically occupied. Since the court's jurisdiction is confined to the claims pleaded, it could not enquire into dealings over 4349. Any order or step taken absent jurisdiction would be a nullity.

p. 2

Legal principles established

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  • A court loses jurisdiction to vary or enforce a decree in respect of matters or property not pleaded before it; a decree cannot be transferred from one parcel of land to another
  • Jurisdiction flows from the Constitution or legislation and any step taken without jurisdiction is a nullity

Court orders

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  1. 1.Notice of Motion dated 4th April 2020 struck out
  2. 2.No order as to costs

Authorities

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Cases cited (3)

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Raila Odinga & others v IEBC & others
    [2013] eKLR
Jurisdiction invoked
Jurisdiction flowing from the Constitution or legislation; the court declined jurisdiction on the basis that it is functus officio

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, "Shikhaya v Shikhaya (Environment & Land Case 15 of 2021) [2024] KEELC 674 (KLR)", Case Analysis (2024). ELC case transferred from HCCC No. 49 of 2012 (Kakamega), current number as stated in 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/674/eng@2024-02-15

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