Dick Otieno Okumu v John Ooro Minene

a) An order of specific performance compelling the Defendant to vacate land parcel KANYAMWA/KK/KAKAETE/1443. b) An order of injunction against the Defendant barring the Defendant, his servants, workers, or agents from trespassing onto the suit parcel of land. c) Costs of the suit and interest thereon at 16%. d) Any other relief the court deems fit. 2. The Defendant filed a statement of defense denying all the allegations raised in the Plaint, while notably omitting any counterclaim to anchor affirmative proprietary relief. The court heard the matter and proceeded to frame the main issues for determination as follows: a) Is the plaintiff the owner of the suit land? b) Has the defendant trespassed onto the plaintiff’s land? c) Is the plaintiff entitled to the prayers sought? 3. The court ultimately found and held that the Plaintiff had not proved his case on a balance of probabilities and dismissed the suit for want of proof, with no order as to costs. 2. The Post-Judgment Application 4. Five years later, the Respondent herein, acting in person, filed an application under a Certificate of Urgency dated 04/10/2024 and moved the court for orders of injunction and transfer as follows: a) Spent. b) Pending the hearing and determination of the application, the court be pleased to grant the applicant an order stopping the respondent by himself, his employees, servants, proxies, relatives, and any other person 2|Page HOMA BAY ELC APPEAL NO. 27 OF 2025, JUDGMENT

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from entering, selling, encroaching, alienating, or interfering with a portion of land No. KANYAMWA/K/K/KAKAETA/1443 measuring 3 ½ acres occupied by the applicant. c) That the court direct the Executive Officer of the court to execute/sign transfer forms in place of the respondent, and the Land Registrar do cause a transfer of the portion measuring approximately 3 ½ acres of land parcel No. KANYAMWA/K/K/KAKAETA/1443 to the name of the applicant. d) That the court order the respondent to remove a fence erected by the respondent on the portion measuring 3 ½ acres occupied by the applicant. e) That the court order that the respondent do stop interfering with the applicant by himself, family members, employees, servants, and/or any other person deriving authority from him during the execution of activities on the portion measuring 3 ½ acres of land parcel KANYAMWA/K/K/KAKAETA/1443 where the applicant is occupying. f) That the costs of the application be borne by the respondent. 5. The application was vigorously opposed by counsel for the Applicant, and the court directed the filing of submissions. Upon filing, the court reserved a date for ruling. 6. The court then framed one issue for determination, which was whether the application was merited. 7. In consideration of the prayers sought in the applicant's application, the court noted: a) That judgment in this matter was delivered by the court on 20 November 3|Page HOMA BAY ELC APPEAL NO. 27 OF 2025, JUDGMENT

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2019, whereby the respondent's suit was dismissed for want of proof. b) As per the said judgment, the respondent failed to prove that the applicant was occupying the suit land illegally. c) I have perused the proceedings and pleadings, and I note that the suit land in respect of which judgment was delivered was KANYAMWA/K/K/KAKAETA/1443, which is the same property stated in the application herein. d) It is evident from the proceedings that after the judgment of the court, none of the parties preferred an appeal against the said judgment, so the same stands to date, and the applicant is entitled to the fruits of the said judgment. 8. The respondent submitted that this court has no jurisdiction to entertain the application herein for the reason that the orders sought herein are substantive and can only be sought in a substantive suit. 9. The Honourable Magistrate then went on to conclude thus: It is my humble view that the applicant has a right to have the judgment delivered in his favour complied with, and this can only be done through an application to the court where the judgment was issued from. I therefore find that the applicant is well in order when he approached the court through the application herein. Disposition: That being the position and having analyzed the orders sought by the applicant herein, I find that the application herein dated 04th October 2024 is merited, and the same is allowed as prayed, save for the prayer for costs, in respect of which I direct that each party bear their own costs. 3. The Appeal 4|Page HOMA BAY ELC APPEAL NO. 27 OF 2025, JUDGMENT

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10.The Appellant prefers an appeal against the said Ruling on the following grounds: a) The learned trial magistrate erred in law in granting prayers to the Respondent which were never sought. b) The learned trial magistrate erred in law in not appreciating the fact that the Respondent did not file a counterclaim in ELC NO. 18 of 2016 seeking a permanent injunction. c) The learned trial magistrate erred in law in not appreciating that for an order for a permanent injunction to be granted, there must be a prayer for it in the plaint or in the counterclaim. d) The learned trial magistrate erred in law in treating the judgment in ELC NO. 18 of 2016 as awarding 3 ½ acres to the Respondent. e) The learned trial magistrate erred in law in not appreciating the fact that ownership of 3 ½ acres of KANYAMWA/KAKAETA/1443 was never resolved and was subject to proof in a substantive suit. Reliefs sought: a) This appeal be allowed. b) Costs of the appeal be provided for. 4. Resolution of the Appeal by Court 11.The parties were directed to file written submissions. I have seen the Appellant's submissions, but having checked court tracking systems (CTs) and the court file, it seems no submissions have been filed by the Respondent. Submissions 5|Page HOMA BAY ELC APPEAL NO. 27 OF 2025, JUDGMENT

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12.Counsel submits that the Respondent herein during the trial never raised a counterclaim or any prayers for the Appellant to be stopped from using the suit land property. 13.He waited until years after the judgment had been rendered to make an application for injunction and transfer when the court had already been rendered functus officio. 14.A look at the defense raised by the Respondent (Reference is made to pages 125–126 of the record of appeal) shows that he never raised a counterclaim nor prayed that an injunction of whatever gravity be issued against the Defendant. 15.The Defendant ought to have filed a substantive suit for his rights on the property to be ascertained on merits and not sneak in with a post-judgment application, not for review of orders granted, but for injunctive orders where no substantive suit was in existence. 16.It is therefore not clear under what cause of action the Respondent was awarded ownership and what rights he exercised on the particular land parcel, being that he did not possess any certificate of title and never prayed for the land to be transferred to him during the trial stage to enable the Appellant to defend the same and/or question the evidence as to the existence of whichever rights they claimed. 17.The dismissal of the suit filed by the Appellant merely left the parties in their original position and did not confer upon the Respondent any title to the said land. 18.Having allowed prayers of injunction and transfer to the Respondent amounted to hearing a claim for a different cause of action through an application rather than a substantive suit. The Respondent had recourse through a different cause of action, as the one in the present suit was for trespass and not transfer of title. 6|Page HOMA BAY ELC APPEAL NO. 27 OF 2025, JUDGMENT

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19.He was never declared the owner of the suit land parcel; therefore, there was no suit upon which his application for injunction was anchored, and the same ought to have been dismissed. 20.Reliance is placed on the case of Lamba v. National Social Security Fund & Another, where the court stated that: "It is trite law that courts can only grant orders that have been prayed for in the pleadings, or make appropriate orders as it deems fit if need arises in the course of a trial." 21.Also cited is Karanja & Another v. Karanja, which stated thus: "The above provisions point to the fact that any application for injunction ought to be anchored in a suit." 22.This was the position held by the court in Cresta Investments Limited v. Gulf African Bank Limited & Another, which held: "Moreover, an application for injunction under Order 40 of the Civil Procedure Rules is predicated on a suit filed by the party seeking the injunction. An injunction without a substantive claim is a plea in vain and cannot lie in law or at all." 5. Disposition and Legal Analysis 23.The main question for consideration is whether the court failed in its duty to apply the correct legal principles and whether the orders granted were within the realm of remedies within the powers of a court. 24.This is in line with the issue for determination addressed by counsel for the 7|Page HOMA BAY ELC APPEAL NO. 27 OF 2025, JUDGMENT

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Appeal as to whether the court granted prayers that were never sought. 25.Order 3 Rule 1 of the Civil Procedure Rules provides that: “Every suit shall be instituted by presenting a plaint to the Court or in such other manner as may be prescribed.” 26.Order 7 Rule 13 of the Civil Procedure Rules provides that: “If in any case in which the defendant sets up a counterclaim, the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.” 27.The suit in the lower court was originated by the Appellant by way of plaint, and both parties were accorded an opportunity of tendering evidence. 28.The court then made a final determination by dismissing the suit for failing to meet the required standards. That brought the issues in the matter to a spirited end. 29.The court is alive to the fact that no counterclaim was pleaded or filed by the Respondent so as to enable the court to proceed to determine the same in terms of Order 7 Rule 13 of the Civil Procedure Rules. 30.The only avenue that is available to a party to the suit is to file a post-judgment application or an appeal arising from dissatisfaction with the judgment. No appeal was ever filed, and since the order made by the court was a negative order, it did not require any post-judgment application. 31.Once the trial court had issued judgment and decree, the same court was now functus officio and could not delve into the parties' capacity and similar issues that constitute the merits of the dispute. 32.The general principle of law is that as soon as a judgment or order is 8|Page HOMA BAY ELC APPEAL NO. 27 OF 2025, JUDGMENT

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pronounced by a court of law, that court becomes functus officio. See Paul Nyamarere v. Uganda Electricity Board (In Liquidation). 33.To me, even if the Appellant did not plead res judicata, filing an application in an already concluded suit and granting substantive orders amounted to res judicata. In essence, the court does not have the power to override, alter, or interfere with a judgment that has been pronounced, save in stipulated circumstances provided for under the law, such as applications for review, revision, or in cases of the slip rule. 34.The court's attempt to interrogate post-judgment an issue that ought to have been traversed when the suit was heard was untenable, as the court was now functus officio. 35.The Appellant has respectfully expressed concern regarding the trial magistrate's decision to grant a remedy that neither party had prayed for. 36.Courts have also taken the position that substantive orders cannot be issued in Miscellaneous Applications. This is the position that was adopted by Limo, J., in Witmore Investment Limited v. County Government of Kirinyaga & 3 Others, wherein it was held: “So, where a party such as an applicant herein seeks an order that in effect appears to resolve with finality an issue in controversy or a contested issue, the application ceases to be interlocutory and it is a misconception to describe it as such. If the applicant wanted to move this court for a final resolution of the issues in controversy raised in the application, it should have moved this court properly in the manner provided by law.” 37.Similarly, in Nairobi West Hospital Limited v. Joseph Kariha & Another, it was held: “...In my view this is a substantive order which for all intents and purposes 9|Page HOMA BAY ELC APPEAL NO. 27 OF 2025, JUDGMENT

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cannot be issued through a miscellaneous application. A perusal of Order 3 Rule 1 of the Civil Procedure Rules will reveal that a suit may be commenced by way of a plaint, a petition and/or originating summons which is not the case here. The miscellaneous application may not offer the parties the opportunity to be heard... Consequently, the preliminary objection is upheld and this suit is ordered struck out.” 38.In Anastacia Wagiciengo v. Ezekiel Wafula, the court held that an order in the nature of a mandatory injunction must be supported by a substantive relief in the main pleading. 39.In the case of Chacha & Another v. Orbit Chemicals Industries Limited & Another, the court held as follows: “My reading of the foregoing provisions connotes that the only person who can apply for or seek to procure an order of temporary injunction is the person who has originated or commenced the suit. In this regard, if the Applicants are keen to procure and obtain any temporary relief or intervention in the nature of a temporary injunction, then it behoves the Applicants to file a suit whereby the same is seeking substantive orders against the Respondents. Only then can the Applicants file an application for a temporary injunction pending the determination of the suit. The orders of a temporary injunction or even a permanent injunction can only be anchored on some foundation. For clarity, the foundation would be a substantive suit filed by the Applicants and in respect of which the same has inter-alia sought for orders of permanent injunction or appropriate declaratory reliefs.” 40.It would follow that since the counterclaim was never filed, the trial magistrate should not have delved into matters that had not been raised, and as such, no 10 | P a g e HOMA BAY ELC APPEAL NO. 27 OF 2025, JUDGMENT

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finding should have been made that the Respondent was entitled to enjoy a judgment that was not granted at all. 41.Our jurisprudence reflects the position that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or Statute, that procedure should be strictly followed (See Speaker of the National Assembly v. Njenga Karume; Dishon Ochieng v. SDA Church, Kodiaga; Hunter Trading Company Ltd v. Elf Oil Kenya Limited). 42.In overlooking a statutory imperative, the learned magistrate cannot be said to have exercised her discretion properly. The application should have been anchored on a suit; it was not about what prejudice the Appellant would suffer or what purpose the suit would have served. 43.Discretion cannot be used to override a mandatory statutory provision, and it is trite law that courts can only grant orders that have been prayed for in the pleadings or make appropriate orders as it deems fit if need arises in the course of a trial. 44.Indeed, where a court has proceeded to grant a relief not contained in prayers in the pleading or not regularly sought by a party expressly or by implication, appellate courts have had no hesitation in annulling or overturning orders granting such reliefs. Upon dismissal of the Plaintiff’s suit, the matter ended there. 45.Her failure to hold that she had no jurisdiction is an error of law, and it caused injustice against the Appellant. 46.In view of the above, I find that the trial magistrate acted in the exercise of her jurisdiction with material irregularity and injustice, and I hold that this appeal has merit. It ought to succeed as against the Respondent. 11 | P a g e HOMA BAY ELC APPEAL NO. 27 OF 2025, JUDGMENT

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6. Verdict i) THAT the appeal is hereby allowed in its entirety. ii) THAT the Ruling and consequential orders of the lower court delivered on the post-judgment application dated 04th October 2024 are hereby set aside and vacated. iii)THAT the Respondent shall bear the costs of this appeal, to be paid to the Appellant and Costs in the lower court. DATED, DELIVERED AND SIGNED VIRTUALLY VIA TEAMS PLATFORM AT HOMA BAY THIS 25TH DAY OF SEPTEMBER, 2026. HON. JUSTICE J. W. WANYONYI JUDGE In the presence of: 1. Ochieng for the Appellant 2. John Ooro Minene - Respondent 12 | P a g e HOMA BAY ELC APPEAL NO. 27 OF 2025, JUDGMENT

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