Church Commissioners of Kenya v Lemurian & 28 others (Environment and Land Case 209 of 2014) [2025] KEELC 6636 (KLR)
The bottom line
#Kenya's Environment and Land Court in Eldoret dismissed occupants' bid to delay eviction, ruling they must obey court orders and cannot re-litigate boundary issues already decided.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the deponent of the supporting affidavit
Even if Joseph Lolepio lacked locus standi, invalidating his affidavits would not render the application fatally defective as a supporting affidavit is not mandatory
Order 51 Rule 4 requires a notice of motion to state its grounds; an affidavit is only served where the applicant intends to adduce evidence. No death certificate proved the 26th Defendant's death and no authority or grant of representation was presented, but the court nonetheless proceeded to determine the motion on its merits.
Whether the Defendants made a case for the survey and temporary orders sought
They did not; no allotment letters were annexed, no proof of the Plaintifi's alleged invasion was tabled, and their willingness to vacate only upon a survey showed they knew the boundaries and remained in occupation in defiance of the judgment
The judgment of 15th October, 2024 ordered the Defendants to vacate within 90 days unconditionally. Conditioning their compliance on a survey was a veiled attempt to review the judgment. The prior injunction application on the same construction allegations had been dismissed on 28th September, 2023.
Res judicata and functus officio
The boundary/survey issue was barred by Section 7 of the Civil Procedure Act; the claim was not decided in the judgment of 15th October 2024 and is deemed refused under Explanation 5
The survey issue arose during court-annexed mediation, and the Mediation Agreement of 1st October, 2019 was adopted as a court order on 13th February, 2020 before Hon. Justice M. Odeny. The Defendants could have pursued its execution during the main suit but did not; raising it now offends res judicata.
Costs
Costs follow the event under Section 27 of the Civil Procedure Act; the Plaintifi successfully defended the application and is entitled to costs
The Defendants dragged the Plaintifi to court and failed to prove their assertions, causing the Plaintifi additional expense. No justifiable reason existed to deny costs; the court's discretion under Section 27 must be exercised judicially.
Legal principles established
#- An application supported by an affidavit sworn by a person without locus standi is not thereby fatally defective, since a supporting affidavit is not mandatory under Order 51 Rule 4
- Court orders must be obeyed unless and until set aside, even if believed to be irregular or void
- A matter that might and ought to have been raised in a former suit, and any relief not expressly granted, is deemed decided/refused and cannot be re-litigated (res judicata)
Court orders
#- 1.The Defendants' Notice of Motion Application dated 23rd December, 2024 is dismissed
- 2.Costs of the application payable by the Defendants to the Plaintifi
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution read with Section 13 of the Environment and Land Court Act (as invoked by the Defendants)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Church Commissioners of Kenya v Lemurian & 28 others (Environment and Land Case 209 of 2014) [2025] KEELC 6636 (KLR)", Case Analysis (2025). Eldoret ELC suit - Notice of Motion dated 23rd December, 2024 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6636/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.