Tonui v Wekesa & 5 others (Environment & Land Case 23 of 2018) [2025] KEELC 1326 (KLR)

The court held that the respondents' pending appeal and stay application did not operate as an automatic stay under Order 42 Rule 6(1). The decree-holder is the registered owner and the judgment had not been stayed, set aside or vacated. The court was functus officio on the earlier stay ruling of 20/4/2023, and nothing was shown to have been filed challenging that ruling.

The court accepted the definition of lis pendens from Ruth Kinyua and Mawji as concerning acts done during the pendency of a suit, particularly alienation of property rights prejudicing the opposing party. It found no evidence that the applicant had given out any of her rights to a third party, so the doctrine did not assist the respondents.

Although ownership had been determined in the applicant's favour, the reliefs of eviction and delivery of vacant possession were not pleaded in the primary plaint and thus not embodied in the decree. An eviction order has far-reaching implications and must rest on proper pleadings, claim and judgment, and comply with Sections 38 CPA, Order 22 CPR and Sections 152A-152F of the Land Act, including service of an extracted decree and eviction notice.

The court noted that the applicant did not annex the extracted decree served on the judgment debtors as required by Order 22 Rules 29, 30 and 80, nor evidence of an eviction notice under Sections 152A-152(1) of the Land Act. Full statutory compliance is a precondition to obtaining the court's assistance, including armed security through the Deputy Registrar.