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ELCPartially AllowedELC NO. 28 OF 2005 (Formerly Busia HCCC No. 28 of 2005)· [2026] KEELC 4922 (KLR)

Wafula v Obilo & 4 others (Environment and Land Case 28 of 2005) [2026] KEELC 4922 (KLR)

Environment and Land Court
30 July 2026
2,401 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 stopped a burial on land it had already awarded to someone else, confirming that filing an appeal doesn't suspend a judgment unless conditions are met.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Busia (C. Mugambi, J) determines a Notice of Motion dated 28th July 2026 by Rodgers Joab Wafula, the applicant in ELC No. 28 of 2005, in which judgment was delivered in his favour on 16th December 2021, declaring him entitled to Land Parcel No. SAMIA/BUBURI/216, ordering eviction and issuing a permanent injunction. A conditional stay (deposit of Kshs. 250,000 within ninety days) granted on 26th January 2023 was never complied with, and an appeal is pending before the Court of Appeal (COA CA E120 of 2026). Upon learning of the death of the 1st Respondent, Dorotia Nelima Obilo, the applicant sought an injunction restraining her burial on the suit land and an order requiring police officers to show cause why they should not be cited for contempt for failing to enforce eviction. The Respondents argued the court was functus officio and that denying burial would cause irreversible prejudice. The court framed a single issue: whether it retained jurisdiction to issue post-judgment preservatory orders. Holding that functus officio does not divest a court of residual jurisdiction to preserve the subject matter and protect its decree, and that a pending appeal without a valid stay confers no rights of occupation, the court found the burial imminent and its effects irreversible, and restrained the burial. However, the contempt prayer was declined for want of evidence of police non-compliance. Costs were awarded to the applicant.

Key legal issues

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01

Whether the court is functus officio after judgment, review and grant of stay

Holding

The court is not functus officio; it retains residual jurisdiction to issue preservatory orders pending appeal

Reasoning

The doctrine of functus officio prevents reopening the merits of a concluded decision, but it does not divest a court of all jurisdiction after judgment. The court retains incidental jurisdiction to make orders necessary to preserve the subject matter of litigation, protect the integrity of its decree, and prevent its process from being abused, without reopening the merits.

p. 8
02

Whether a pending appeal confers a right to occupy or bury the deceased on the suit land

Holding

No - absent a valid stay, the pendency of an appeal confers no such right

Reasoning

Under Order 42 Rule 6(1) of the Civil Procedure Rules, an appeal does not operate as a stay unless the court so orders. The stay granted to the Respondents was conditional on depositing Kshs. 250,000 within ninety days, a condition never fulfilled, so the decree remained enforceable. The Respondents possess no decree, order or stay authorizing re-entry or occupation.

p. 10
03

Whether the intended burial warranted a preservatory injunction

Holding

Yes, the burial would irreversibly alter the suit property and defeat the decree

Reasoning

The grave had already been dug and burial was imminent. Once conducted, the alteration would be irreversible except through the drastic process of exhumation, generating fresh disputes over exhumation, cultural rights and occupation. The court was obliged to exercise its residual jurisdiction to preserve the property pending appeal.

p. 11
04

Whether the police should be cited for contempt

Holding

Prayer declined for lack of evidence of non-compliance

Reasoning

The Applicant alleged that the police failed to enforce the eviction orders despite several letters, but the court found nothing on record demonstrating non-compliance by the police, and therefore declined prayer 2 of the Notice of Motion.

p. 14

Legal principles established

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  • A court retains residual or incidental jurisdiction after judgment to issue consequential and preservatory orders necessary to give effect to its judgment and prevent its decree from being rendered nugatory
  • The filing of an appeal does not operate as a stay of execution or suspend the legal effect of a judgment
  • Burial on land adjudged to belong to another creates a permanent physical occupation that would undermine the decree

Court orders

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  1. 1.An order restraining the Respondents, their agents, servants, family members or any other persons acting under their instructions from burying or causing the burial of the remains of the late Dorotia Nelima Obilo on Land Parcel No. SAMIA/BUBURI/216
  2. 2.The costs of the application shall be borne by the Respondents
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (inherent and residual post-judgment jurisdiction)

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, "Wafula v Obilo & 4 others (Environment and Land Case 28 of 2005) [2026] KEELC 4922 (KLR)", Case Analysis (2026). ELC NO. 28 OF 2005 (Formerly Busia HCCC No. 28 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4922/eng@2026-07-30

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