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ELCPartially AllowedELC NO. 182 OF 2017 (O.S)· [2024] KEELC 1136 (KLR)

Lagat v Lagat (Enviromental and Land Originating Summons 182 of 2017) [2024] KEELC 1136 (KLR)

Environment and Land Court
29 February 2024
1,804 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 Environment and Land Court ruling at Eldoret, delivered by E. O. Obaga J on 29 February 2024, determines two applications arising from a judgment of 20 March 2023 in which an originating summons claiming adverse possession was dismissed and the plaintiff's suit (ELC 42 of 2017) seeking eviction was allowed. The Decree Holder's application dated 14 November 2023 sought police security from the Officer in Charge of Moi's Bridge Police Station during the physical eviction of the plaintiff and his family from LR. No. Moi's Bridge Block 2 (Tuiyobei)/72 and demolition of illegal structures. The Judgement Debtor opposed, contending the court was functus officio, that eviction could not be granted through an application, and that he had not been served with the decree. The court held it was not revisiting its judgment on the merits but merely ordering security for enforcement, noting the Respondent admitted forcefully entering the property and stationing goons who pelted the applicant with stones, and that eviction had been granted in the amended plaint. The application was allowed in terms of prayers 2 and 3. The Judgement Debtor's application dated 11 December 2023 sought stay of execution pending an intended appeal. Applying Order 42 Rule 6, the court found an unexplained delay of almost nine months, apparently filed to counter the Decree Holder's application, and no demonstrated substantial loss, the applicant having built on land purchased from a third party and the respondent undertaking not to dispose of the property. The stay application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the court was functus officio to entertain the application for police security during eviction

Holding

The court was not functus officio because it was not asked to revisit the judgment on merits, only to enforce it by providing security during eviction

Reasoning

The functus officio doctrine bars a court from revisiting its judgment on the merits or exercising judicial power over the same matter, save as provided by law. Ordering police security during execution of a decree is an incident of enforcement, not a merits review. The Respondent admitted forcefully entering the property and stationing goons who pelted the applicant with stones, demonstrating a real risk of breach of peace justifying security.

p. 3
02

Whether eviction was being sought for the first time in the security application

Holding

Eviction had been sought and granted in the amended plaint dated 20.4.2017, so the respondent could not argue it was new relief

Reasoning

The court held that the relief granted in the amended plaint included eviction, which succeeded on 20.3.2023. The security application merely sought police assistance to execute that decree, not a fresh eviction order. The contention that an eviction order must be sought in a substantive suit was answered by pointing to the original suit in which eviction was pleaded and granted.

p. 3
03

Whether the Judgement Debtor satisfied the Order 42 Rule 6 conditions for stay pending appeal

Holding

The stay application failed for unexplained delay of almost nine months and lack of demonstrated substantial loss; security was therefore not addressed

Reasoning

Order 42 Rule 6 requires filing without unreasonable delay, demonstration of substantial loss, and security. The judgment was delivered on 20.3.2023 and the application filed on 11.12.2023, an unexplained delay of almost nine months, apparently filed to counter the Decree Holder's application. Substantial loss was not demonstrated: the applicant built houses on land purchased from a third party, the respondent undertook not to dispose of the property, and if the appeal succeeds the applicant can simply return.

p. 4

Legal principles established

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  • A court that has passed judgment becomes functus officio and cannot revisit the judgment on merits save as provided by law
  • A court directing execution of its decree is not revisiting the merits, and may order police security for an eviction where a breach of peace is demonstrated
  • Demonstration of substantial loss is the cornerstone for grant of stay under Order 42 Rule 6
  • A dismissal of an originating summons together with orders adverse to the applicant in the main suit constitutes orders adverse to him, entitling him to seek stay

Court orders

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  1. 1.Application dated 14.11.2023 allowed in terms of prayers 2 and 3: the Officer in Charge of Moi's Bridge Police Station to provide security during physical eviction of the plaintiff and family from LR. No. Moi's Bridge Block 2 (Tuiyobei)/72 and demolition of any structures illegally erected thereon
  2. 2.Plaintiff/Respondent to bear the costs of the 14.11.2023 application (prayer 3 allowed)
  3. 3.Application dated 11.12.2023 (stay pending appeal) dismissed with costs to the Respondent
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay pending appeal); court's power to ensure compliance with its own decree

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, "Lagat v Lagat (Enviromental and Land Originating Summons 182 of 2017) [2024] KEELC 1136 (KLR)", Case Analysis (2024). ELC NO. 182 OF 2017 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1136/eng@2024-02-29

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