Cherogony v Rono & 10 others (Environment and Land Case 212 of 2013) [2025] KEELC 8407 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Nakuru Community Justice Center, Kituo Cha Sheria – Nakuru Branch should be granted leave to come on record for the applicants after judgment under Order 9 Rule 9
- 2.Whether the court, having dismissed the respondent's adverse possession suit, can issue an order of eviction in favour of the applicants
- 3.Whether the court is functus officio in respect of the relief now sought
Key legal issues
#Whether leave should issue for new counsel to come on record after judgment
Leave granted; the application was unopposed and had merit under Order 9 Rule 9.
The court noted that the applicants sought leave for Nakuru Community Justice Center, Kituo Cha Sheria – Nakuru Branch to replace their former advocates after judgment pursuant to Order 9 Rule 9 of the Civil Procedure Rules. The respondent did not oppose this prayer, and the court found it merited, so it was allowed.
Whether the court can grant an eviction order post-judgment where no counterclaim for eviction was filed
No. The judgment dismissed the adverse possession suit and contained no executable eviction order; the court is functus officio on matters arising from its judgment other than execution of the decree.
The judgment of 23 March 2025 dismissed the respondent's adverse possession Originating Summons for failure to prove 12 years' possession. It issued no eviction order capable of execution. The applicants, having filed no counterclaim for eviction while the suit was pending, cannot obtain substantive eviction relief by application; the court, having delivered final judgment, is functus officio. The proper course is a separate suit under Section 152E of the Land Act.
Whether granting eviction under the application would be procedurally proper
No; it would re-open the concluded case, and eviction must follow the notice regime in Section 152E of the Land Act, 2012.
The court held that an eviction order at this stage would untidy the suit and amount to re-opening the case for substantive orders. Section 152E of the Land Act requires a notice of not less than three months, in writing, published in at least two daily newspapers and displayed at strategic locations, specifying removal conditions and served on the deputy county commissioner and police, before eviction from private land.
Legal principles established
#- A respondent to an adverse possession suit must file a counterclaim for eviction while the suit is subsisting; after judgment the court is functus officio and cannot grant substantive eviction orders by way of application
- Functus officio is an expression of the principle of finality preventing re-opening of decided matters
- Eviction from private land requires prior notice under Section 152E of the Land Act, 2012, including publication and service requirements
Court orders
#- 1.Leave granted to Nakuru Community Justice Center, Kituo Cha Sheria – Nakuru Branch C/O Joseph Kimotho to come on record for the 1st and 2nd Applicants after judgment
- 2.The application for an order of eviction dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction; application under Order 9 Rule 9 of the Civil Procedure Rules following the court's judgment of 23 March 2025 dismissing an adverse possession suit
Relief refused
#Order of eviction of the respondent and authorization for the applicants to take vacant possession, with OCS supervision
The judgment dismissed the adverse possession claim and issued no executable eviction order; no counterclaim for eviction was filed, and the court is functus officio; eviction must be sought in a separate suit under Section 152E of the Land Act with statutory notice
Costs
The application (on eviction) dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having dismissed the suit this court is functus oficio on any matter arising out of its judgment other than execution of the decree.
This court finds that a respondent in a suit of adverse possession should file a counter claim for eviction when the suit is subsisting which should be granted by the court when the suit fails, and ultimately apply for eviction after judgment.
The only avenue left for the applicants is to apply in a separate suit, for eviction of the respondent under section 152E of the Land Act 2012. Otherwise the application lacks merit is dismissed with costs.
A person/entity that wishes to evict unlawful occupants from their land must first issue a notice of not less than three months before the date of the intended eviction to the said occupants stating the intention to evict.
Issues in the judgment
#The judgment contains numerous typographical errors, including 'functus oficio' for 'functus officio' and garbled party/citation names (e.g. 'Sisto Wambuqu versus Kamau Niuquna'), reproduced verbatim in this brief.
Paragraph 20 states the Black's Law Dictionary definition of functus officio but the definition text itself is missing/blank in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherogony v Rono & 10 others (Environment and Land Case 212 of 2013) [2025] KEELC 8407 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8407/eng@2025-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.