Atieng & 2 others v Omusolo & 2 others (Environment and Land Case 37 of 2016) [2026] KEELC 1177 (KLR)
The bottom line
#A Busia court allowed landowners to finally survey and take the three acres they won in 2022, despite procedural missteps.
What this practically means
#Executive summary
#Key legal issues
#Incompetence for non-compliance with Order 9 Rule 9 Civil Procedure Rules
The lapse was cured under Article 159(2)(d); the Motion was treated as properly filed but the Applicants denied costs
The Defendants were previously represented by Tom Mutei Advocates, and the Motion was filed by Osia & Company Advocates after judgment without the court order or consent required by Order 9 Rule 9. Relying on Tobias M. Wafubwa v Ben Butali, the court found no prejudice or miscarriage of justice and invoked Article 159 of the Constitution, treating the Motion as properly filed while denying costs to mark the lapse.
Effect of the decree in Busia ELC Case no. 35 of 2016 (O.S) on this case
The decree in the other case is irrelevant here; the survey report under it cannot be used, and the orders in this case stand
Although the suit land is the same, the parties in Busia ELC Case no. 35 of 2016 (O.S) differ, and no direction exists that its judgment apply to this case. A. Omollo J delivered the earlier judgment on 21st July 2022 but was aware of it when crafting the disposal orders in this suit on 27th September 2022, so the two decrees can coexist.
Whether to expunge the further affidavit mislabeled as a reply
Refused; the mislabeling was a mere slip curable under Article 159(2)(d)
Counsel for the Plaintiffs sought expungement of the further affidavit dated 21st October 2025 as unknown to Order 51 Rule 14(3) because it was not labeled a supplementary affidavit. The court agreed it was mislabeled but held that this was a curable slip and declined to take the draconian route of expungement, preferring substantive justice over technicality.
Whether the demarcation orders should issue
Yes; without survey the Applicants would hold a hollow judgment that cannot be executed
The judgment of 27th September 2022 awarded the three Defendants three acres of the suit land, and that entitlement can only be realized if the land is surveyed. The judgment has not been set aside on appeal or review (the pending appeal relates to Busia ELC no. 35 of 2016), so the fruits of the judgment must be made available through demarcation.
Legal principles established
#- Non-compliance with Order 9 Rule 9 is a procedural lapse that may be excused under Article 159 of the Constitution where it does not prejudice the other party or affect the core of the dispute, but the defaulting party may be denied costs
- A decree issued in one case cannot be used to determine the remedies available to parties in another case even where the subject matter is the same, unless the court has so directed
- Court orders are not issued in vain; a judgment must be capable of execution and the surveyor has a duty to implement disposal orders
Court orders
#- 1.The Notice of Motion is allowed (thereby authorizing the County Surveyor Busia to demarcate the Applicants' portion comprised in South Teso/Asinge/377 as awarded by the judgment delivered on 27th September 2022 and directing the OCS Adungosi Police Station to ensure law and order during the demarcation)
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution invoked to sustain the Motion otherwise premised on the Law of Succession Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Atieng & 2 others v Omusolo & 2 others (Environment and Land Case 37 of 2016) [2026] KEELC 1177 (KLR)", Case Analysis (2026). Busia ELC (date of Motion: Notice of Motion dated 16th June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1177/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.