Muia v Ndetei & another (Environment & Land Case 98 of 2017) [2024] KEELC 5926 (KLR)
The bottom line
#A Kenyan landowner won court permission to evict trespassers immediately, without serving statutory eviction notices or waiting for legal costs to be taxed.
What this practically means
#Executive summary
#Key legal issues
#Functus officio
The court is not functus officio in respect of the present application, as it has not pronounced itself on it; the doctrine bars re-opening of a decided matter, not hearing of fresh consequential applications.
The court adopted the definition of functus officio and the Court of Appeal's statement in Telkom Kenya v John Ochanda, noting the doctrine prevents re-opening of decided matters and provides finality. Since the present application for leave to execute before taxation had not yet been heard or determined, the court retained competence to determine it notwithstanding delivery of judgment and dismissal of the appeal.
Applicability of Sections 152B, 152E and 152G of the Land Act
The statutory eviction notice regime applies to evictions carried out without a court order; where a court has issued an eviction order without directing compliance with Section 152E, no such notice is required.
The court read Sections 152A to 152G as governing evictions of persons occupying land that may be carried out without a court order, requiring notices from the NLC, county officials or owners. Relying on Muthithi Investment Limited, it held the framework does not relate to evictions in execution of court decrees. The decree here ordered eviction without mentioning Section 152E, so the plaintiff could evict trespassers in execution.
Leave to execute before taxation of costs
Under Section 94 of the Civil Procedure Act the court may, in its discretion, order execution of a decree before costs are ascertained by taxation, save as to the costs portion.
Section 94 confers a discretion on the High Court to allow a decree to be executed forthwith before taxation, except as to costs. The court cited Bamburi Portland Cement on the requirement of leave by notice of motion served and heard inter partes, which was satisfied here, and found the application merited.
Legal principles established
#- Section 152E of the Land Act (eviction notices) does not apply where a court has specifically issued an eviction order; the statutory eviction framework governs evictions carried out without a court order.
- Leave to execute a decree before taxation of costs is a discretionary power reserved to the High Court under Section 94 of the Civil Procedure Act.
- A court that has pronounced final judgment is functus officio as to that matter, but this does not prevent it from hearing consequential applications it has not yet determined.
Court orders
#- 1.Leave granted to the Plaintiff/Applicant to execute the decree of 28th December 2018 forthwith by eviction of anyone found trespassing on title No. Emali Township Block 1/198 and demolition of structures, except as to costs, which are executable once ascertained by taxation
- 2.Costs of the application to the Applicant
- On appeal from
- Court of Appeal
- Civil Appeal No. 128 of 2019
- Jurisdiction invoked
- Sections 3, 3A and 94 of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muia v Ndetei & another (Environment & Land Case 98 of 2017) [2024] KEELC 5926 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5926/eng@2024-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.