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ELCStruck OutNotice of Motion dated 7th March 2025 in the Plaint filed 14th February 2025 (Kisii ELC Misc. No. 7 of 2021 referred to as source of orders)· [2026] KEELC 1064 (KLR)

Ondieki & 2 others v Director Survey of Kenya Nyamira County & 3 others (Land Case E006 of 2025) [2026] KEELC 1064 (KLR)

Environment and Land Court
26 February 2026
DOD. O. Ohungo
1,869 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cannot enforce orders issued in a different case or court registry; you must apply in the exact case file where the orders were made, unless they are formally transferred.

What this practically means

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Executive summary

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The Plaintiffs sued by Plaint filed 14th February 2025, the First and Second Plaintiffs suing under a Power of Attorney from Ondieki Ogoto Ongaga, registered proprietor of Kisii/Gesima Settlement Scheme/228, and the Third Plaintiff as administrator of the estate of Benjamin Kiriago Onkendi, registered proprietor of Gesima Settlement Scheme/196. They alleged trespass and destruction of trees over some six acres and sought declarations, eviction, damages and costs. Shortly after, they moved the Court by Notice of Motion dated 7th March 2025 seeking an order compelling the Director of Survey to produce and hand over a survey report said to be required under orders issued on 22nd July 2021 and 26th July 2021 by J.M. Onyango J in Kisii ELC Misc. No. 7 of 2021, which they intended to use as the backbone of their case. The First to Third Defendants opposed through Grounds of Opposition, contending the Court lacked jurisdiction under Section 34(1) of the Civil Procedure Act and Order 22 rule 6 of the Civil Procedure Rules, that they were strangers to the ex parte orders, and that the Court is under no duty to gather evidence for litigants. The Fourth Defendant did not respond. Framing two issues - jurisdiction and whether the orders should issue - the Court held that execution and enforcement questions belong to the court that issued the decree or order, absent transfer. Although the Kisii ELC had concurrent jurisdiction, the 2021 orders were made in a different case file, and no transfer had been obtained. The Plaintiffs' attempt to distinguish between a decree and an interlocutory order was rejected. Following CM Advocates LLP v Cole & Moikobu, the Court held it lacked jurisdiction, struck out the application and awarded costs to the First to Third Defendants.

Key legal issues

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01

Whether the ELC at Nyamira could enforce orders issued by the ELC at Kisii in a different case

Holding

It could not; enforcement of orders must be pursued in the court and case file in which they were made, absent transfer of the decree/order

Reasoning

Relying on Section 34(1) of the Civil Procedure Act and Order 22 rule 6 of the Civil Procedure Rules, and the decision in CM Advocates LLP v Cole & Moikobu, the court held that execution questions belong to the court that made the order. The Kisii orders were made in a different case by a court of concurrent jurisdiction and had not been transferred to Nyamira. Enforcing them here risked conflict with the record in the other case and usurping that court's role in determining whom the orders bind.

p. 4
02

Whether the Plaintiffs' characterisation of the orders as interlocutory (as opposed to a final decree) distinguished their application from Section 34(1)

Holding

No; no distinction between a decree and an order existed in the circumstances, so Section 34(1) and Order 22 rule 6 applied

Reasoning

The court found the Plaintiffs' attempt to draw a decree/order distinction unavailing. The CM Advocates holding was found persuasive and applicable: the forum for execution issues is the issuing court unless there has been a transfer, and Section 34 issues do not require (or permit) a separate suit. The Plaintiffs had not obtained any transfer of the 2021 orders to Nyamira.

Legal principles established

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  • The proper forum for determining issues relating to execution, discharge or satisfaction of a decree or order is the court that issued it, unless the decree/order has been transferred
  • Jurisdiction flows from the Constitution or legislation and a court cannot exceed the jurisdiction conferred on it by law

Court orders

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  1. 1.The Notice of Motion dated 7th March 2025 is struck out for lack of jurisdiction
  2. 2.Costs of the application awarded to the First to Third Defendants

Authorities

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Legislation

  • Civil Procedure ActSection 34(1)
  • Civil Procedure RulesOrder 22 rule 6

Cases cited (5)

  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • CM Advocates LLP v Cole & Moikobu (Sued as the Administrators of the Estate of Josephine Eleanor Moikobu) & 3 others
    [2025] KEELC 6583 (KLR)
  • Michael Oringo Alusi & 2 Others vs Jobson Salano Mulanda
    [2016] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; jurisdiction challenged under Section 34(1) of the Civil Procedure Act and Order 22 rule 6 of the Civil Procedure Rules

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, "Ondieki & 2 others v Director Survey of Kenya Nyamira County & 3 others (Land Case E006 of 2025) [2026] KEELC 1064 (KLR)", Case Analysis (2026). Notice of Motion dated 7th March 2025 in the Plaint filed 14th February 2025 (Kisii ELC Misc. No. 7 of 2021 referred to as source of orders). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1064/eng@2026-02-26

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