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ELCDismissed· [2025] KEELC 1427 (KLR)

Kirui v Rop & 2 others (Environment & Land Case E020 of 2021) [2025] KEELC 1427 (KLR)

Environment and Land Court
20 March 2025
2,158 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Once a Kenyan court delivers final judgment, it cannot grant new injunctions in that case - the plaintiff's bid to stop quarrying failed on this basis.

What this practically means

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Executive summary

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The Plaintiff/Applicant, Jonathan Kimetet Kiru, moved the court by Notice of Motion dated 21st May 2024 seeking a temporary injunction restraining the 1st Defendant/Respondent, Samuel Kipkoech Rop, from quarrying, selling building blocks along Amalo River and felling indigenous riverine trees on LR No. Cis-mara/Olposimoru/354 pending the court's ruling on the Defendant's application dated 3rd November 2023. The Applicant relied on the court's judgment in his favour, stayed on 7th November 2023, and alleged unlawful exploitation of the land and obstruction of his access, including the sale of stones worth about Kshs 180,000 to Olmariko Secondary School. The Respondent opposed, challenging the admissibility of the applicant's photographic exhibits for want of a certificate under the Evidence Act, asserting the land belongs to the estate of Kiprop Arap Rono, and denying the alleged sales. The court framed a single issue: whether the application was merited. It held that since final judgment had been delivered (26th September 2023) and only stayed - not set aside - the suit was concluded, there was no substantive suit pending to support an injunction, and the court was functus officio on merit-based issues and lacked jurisdiction to entertain the application. It also found no tangible evidence of the alleged quarrying or sale. The application was dismissed entirely with costs in the cause, and the parties were directed to prosecute the 3rd November 2023 application within 45 days, failing which the temporary stay would be lifted.

Key legal issues

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01

Whether the court, having delivered final judgment and issued a temporary stay of execution, retains jurisdiction to grant a temporary injunction in the same suit

Holding

The court is functus officio on merit-based issues and devoid of jurisdiction to entertain the injunction application pending ruling on the 3rd November 2023 application

Reasoning

The court delivered final judgment on 26th September 2023 and thereafter stayed execution on 7th November 2023. Because the judgment has not been set aside, the suit is concluded and there is no substantive suit pending to anchor an injunction. Determining the allegations would require scrutinising fresh affidavit evidence and reopening a concluded matter, which the functus officio doctrine forbids. The parties must instead prosecute the pending 3rd November 2023 application expeditiously.

p. 4
02

Whether the plaintiff proved the alleged quarrying and sale of building blocks and felling of trees

Holding

No tangible evidence was produced; the photographs annexed did not prove the stones were excavated on the suit land or sold to Olmariko Secondary School

Reasoning

The plaintiff alleged that the 1st Defendant excavated and sold stones worth approximately Kshs 180,000 to Olmariko Secondary School and felled indigenous riverine trees. No copy of the cheque or documentary evidence of the alleged supply was annexed. The court found the photographs marked JKK1 insufficient to prove excavation on the suit land or the sale to the school.

p. 5

Legal principles established

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  • A temporary injunction can only issue where there is a substantive suit pending; an injunction in a concluded matter is a plea in vain.
  • Once a court has rendered final judgment it becomes functus officio on merit-based issues and cannot entertain interlocutory applications requiring fresh evidence, though it may entertain post-judgment applications for execution, stay, review or setting aside.

Court orders

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  1. 1.The Notice of Motion application dated 21st May 2024 is dismissed entirely with costs being in the cause
  2. 2.The parties to prosecute the application dated 3rd November 2023 to its logical conclusion within 45 days from the date of the ruling, failing which the temporary stay of execution orders issued on 7th November 2023 will be lifted

Authorities

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Legislation

  • Evidence ActSections 65(8), 106 and 108B
  • Civil Procedure RulesOrder 40

Cases cited (9)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Panari Enterprises Ltd v Lyuoch & 2 others
    [2014] eKLR
  • Hezron Kamau Gachuru v Kianjoya Enterprises Ltd & another
    [2022] eKLR
  • Pius Kipchirchir Kogo v Frank Kemeli Tenai
    [2018] eKLR
  • Paul Gitonga Wanjau v Gathuthia Tea Factory Co. Ltd & 2 others
    [2016] eKLR
  • Virginia Edith Wambui v Joash Ochieng Ougo
    Civil Appeal No. 3 of 1987 [1987] eKLR
  • Cresta Investments Limited v Gulf African Bank Limited & Another
    [2020] eKLR
  • Telkom Kenya Ltd v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd
    [2014] eKLR
  • Raila Odinga & 2 others v IEBC & 3 others
    [2010] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a post-judgment application in land matter LR No. Cis-mara/Olposimoru/354

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, "Kirui v Rop & 2 others (Environment & Land Case E020 of 2021) [2025] KEELC 1427 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1427/eng@2025-03-20

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