REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUSIA
ELCLA NO. E006 OF 2025
ALBERT OCHIENG ODHIAMBO ……. 1ST APPELLANT/APPLICANT
KALARA ATIENO ODHIAMBO ………………….…… 2ND APPELLANT
(Suing as the personal representatives of the
Estate of the late PETER PATRICK ODHIAMBO ODINYA)
= VERSUS =
WILLIAM BUNYASI MAKOKHA …………..…….....….. RESPONDENT
(Suing as the personal representative of the
Estate of the late STEPHEN MAKOKHA KIMIDA alias KIMITA)
(Being an appeal against the whole Judgement/Decree of HON. R. ODENYO, SPM, delivered on 2nd April 2025 in BUSIA CMC ELC CASE NO 13 of 2018)
R U L I N G
INTRODUCTION
1. Before this Court are two post-judgment applications arising after the dismissal of this appeal by a judgment delivered on 9th April 2026. I shall first determine the Respondent’s Notice of Motion dated 10th April 2026, before considering the Appellant’s Notice of Motion dated 24th April 2026.
A. THE NOTICE OF MOTION DATED 10TH APRIL 2026
Background
2. The Applicant, William Bunyasi Makokha, is the legal representative of the estate of the late Stephen Makokha Kimida. The Appellants are the personal representatives of the estate of the late Peter Patrick Odhiambo Odinya. The dispute concerns land parcel BUKHAYO/EBUSIBWABO/5080.
3. The Applicant successfully defended Busia CMC ELC NO 13 of 2018, in which the trial court dismissed the Appellants’ claim and allowed the counterclaim upon finding that the transfer of the suit land into the name of the 1st appellant’s father was fraudulent. The trial court directed that the land reverts to the estate of the late Makokha Kimida.
4. The Appellants appealed against that judgment. By a judgment delivered on 9th April 2026, this Court dismissed the appeal and affirmed the judgment of the trial court.
5. The present application was precipitated by information that, notwithstanding the dismissal of the appeal, the Appellants intended to bury the remains of the deceased second Appellant upon the suit land and had continued occupying and utilizing the property.
6. The Applicant therefore seeks orders restraining the intended burial, an injunction against further interference with the land, eviction of the Appellants and demolition of structures erected thereon.
7. The application is opposed. The Appellants contend that they have occupied the land for over four decades, have since filed an Originating Summons claiming adverse possession, and that eviction cannot issue because no such order was either pleaded or granted by the trial court.
ISSUES FOR DETERMINATION
8. Having considered the pleadings, affidavits and submissions, the following issues arise for determination:
a) Whether the Court should restrain the intended burial of the deceased second 2nd Appellant upon the suit land.
b) Whether this Court can grant orders of eviction and demolition sought by the Applicant.
ANALYSIS AND DETERMINATION
a Whether the Court should restrain the intended burial of the deceased 2nd appellant upon the suit land.
9. There is no dispute that this Court dismissed the appeal and upheld the judgment of the trial court.
10. The effect of that judgment was to affirm that the registration of the 1st appellant’s father in title was fraudulent and that the suit property lawfully belongs to the estate of the late Makokha Kimida.
11. Consequently, the Applicant presently holds the benefit of a valid judgment whose enjoyment the Court is under a duty to protect.
12. The evidence before the Court shows that prior to delivery of judgment, interim orders had been issued restraining the intended burial pending determination of the appeal. Upon delivery of judgment, those interim orders naturally lapsed.
13. The Applicant has, however demonstrated that the Appellants still intend to inter the remains of the deceased 2nd Appellant upon the suit property notwithstanding the judgment.
14. The Court takes judicial notice that burial disputes present unique circumstances. Once human remains are interred, the consequences are not only emotional and cultural but also legal. Exhumation is an extraordinary remedy which courts are generally slow to order except in the clearest of circumstances.
15. If the burial proceeds before execution of the judgment, it would substantially alter the character of the suit property and may create practical impediments to the enforcement of the judgment. In effect, it would create a new factual situation capable of frustrating or complicating execution.
16. In the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR, the Court of Appeal discussed the purpose of an injunction as preserving the subject matter of litigation and preventing actions that may render the court’s decision nugatory or occasion irreparable harm.
17. The intended burial, if allowed, would permanently alter the character of the suit property and potentially impede execution of the judgment. The court is therefore justified in granting preservatory injunctive relief to protect the efficacy of its judgment.
18. The Court is therefore satisfied that unless restrained, the Applicant stands to suffer irreparable prejudice incapable of adequate compensation by damages.
19. Conversely, restraining the burial upon the suit land does not prevent the Appellants from according their deceased a dignified burial elsewhere pending resolution of any other legal rights they may pursue.
20. The balance of convenience, therefore, tilts in favour of preserving the subject property in accordance with the judgment already rendered.
21. I am accordingly persuaded that an injunction restraining the intended burial is merited.
22. The Court has also considered the Appellants’ contention that they have instituted ELC Originating Summons No. E012 of 2026 claiming title to the suit property by adverse possession. While the existence of that suit is not disputed, it is trite that the mere institution of proceedings does not, without more, suspend or invalidate a subsisting judgment or decree of a competent court. Until the Originating Summons is heard and determined in favour of the Appellants, the rights of the parties remain governed by the judgment delivered by this Court on 9th April 2026. Accordingly, the pendency of the Originating Summons does not constitute a bar to the grant of preservatory orders necessary to safeguard the efficacy of that judgment. For the avoidance of doubt, however, nothing in this ruling shall be construed as determining or prejudicing the issues raised in the said Originating Summons, and should the Appellants ultimately succeed therein, they shall be at liberty to seek any appropriate consequential relief before the court seized of that matter.
(b) Whether eviction and demolition orders can issue
23. The Applicant further seeks eviction of the Appellants together with demolition of structures standing upon the suit property.
24. With respect, this prayer presents a different legal question. I have carefully revisited both the pleadings before the subordinate court and its judgment.
25. The Respondent’s counterclaim sought cancellation of the Appellants’ title on the grounds of fraud.
26. Neither the counterclaim nor the judgment granted an order for vacant possession, eviction or demolition.
27. Similarly, this Court, sitting as a first appellate court, merely affirmed the judgment of the trial court. It neither granted nor varied the reliefs issued by the trial court.
28. Execution proceedings are intended to enforce an existing decree. They cannot be employed as a vehicle for obtaining substantive reliefs which were neither pleaded nor granted by the court determining the dispute.
29. An order of eviction constitutes a substantive remedy which directly affects proprietary and possessory rights. Such an order cannot issue through an interlocutory application after judgment where it did not form part of the decree sought to be executed.
30. Indeed, to grant eviction in the present application would effectively amount to this Court enlarging the decree and conferring upon the Applicant reliefs which neither the trial court nor this appellate court awarded.
31. Equally, demolition orders are consequential upon lawful eviction. In the absence of a lawful eviction order, the prayer for demolition cannot stand.
32. The Applicant remains at liberty to pursue such remedies as may be available in law through the appropriate legal process.
33. I therefore find no legal basis upon which the eviction and demolition orders sought can issue.
DETERMINATION
34. The Notice of Motion dated 10th April 2026 partially succeeds. Accordingly, I make the following orders:
a) An injunction is hereby issued restraining the Appellants, their agents or any person acting through them from interring the remains of the late Kalara Atieno Odhiambo on land parcel BUKHAYO/EBUSIBWABO/508.
b) An injunction is hereby issued restraining the Appellants, their agents, servants or any person acting through or under them from undertaking any further developments, constructing any structures, cultivating, alienating, committing acts of waste, or otherwise interfering with land parcel number No. BUKHAYO/EBUSIBWABO/508 in a manner inconsistent with the judgment of this court.
c) The Officer Commanding Busia Police Station shall provide security only for purposes of ensuring compliance with the injunctive orders issued herein and maintenance of public peace.
B. THE NOTICE OF MOTION DATED 24TH APRIL 2026
Background
35. The second application is brought by the 1st Appellant seeking, inter alia, orders for stay of execution of the decree of the subordinate court and this Court’s judgment, review and setting aside of the judgment delivered on 9th April 2026, reopening of the concluded appeal, leave to adduce additional evidence, and in the alternative, an order directing a retrial before the subordinate court.
36. The application is principally founded upon what the Applicant describes as new and important evidence allegedly obtained after delivery of the judgment from the Kenya National Archives and Documentation Service, Bungoma Prison records, the Directorate of Criminal Investigations and Jaramogi Oginga Odinga Teaching and Referral Hospital. According to the Applicant, the newly obtained records demonstrate that the Respondent’s late father, Makokha Kimida, did not die on 10th February 1979 as reflected in the death certificate produced during trial, but instead died in the early 1990s while serving a prison sentence and was buried in a mass burial on 4th March 1993.
37. The Applicant contends that both the trial court and this Court proceeded on an erroneous factual premise regarding the date of death of the deceased, thereby occasioning a miscarriage of justice. He further avers that the Respondent has since been charged with the offence of giving false information to a person employed in the public service, contending that this fortifies his application.
38. The Respondent opposes the application on the grounds that the Court is functus officio; that the Applicant is attempting to re-litigate issues already determined; that the alleged evidence could with due diligence have been obtained during the trial or before the appeal was heard; that the official death certificate produced before the trial court remains unchallenged; and that, in any event, the judgments of both courts rested not only on the death certificate but also on independent forensic evidence establishing forgery.
ISSUES FOR DETERMINATION
39. The following issues arise for determination:
a) Whether this Court has jurisdiction to reopen and rehear a concluded appeal.
b) Whether the Applicant has established grounds for review of the judgment delivered on 9th April 2026.
c) Whether this Court can admit additional evidence after determination of the appeal.
d) Whether the Applicant is entitled to the ancillary reliefs sought.
ANALYSIS
(a) Whether this Court has jurisdiction to reopen a concluded appeal
40. The jurisdiction of a court after delivery of judgment is not limitless. Once a court has finally determined a matter, it becomes functus officio, save only in instances expressly permitted by law, such as correction of clerical errors, review where permitted by statute, or clarification of its judgment.
41. The doctrine of functus officio has been affirmed by the Supreme Court in Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others and by the Court of Appeal in Telkom Kenya Limited v John Ochanda (Suing on his Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd [2013] KECA 328 (KLR), where it was held that once a court has pronounced itself on the merits of a dispute, it lacks jurisdiction to reopen and reconsider the same matter except as provided by law.
42. The judgment in this appeal was delivered on 9th April 2026. The appeal stood conclusively determined. This Court cannot, under the guise of review or admission of further evidence, reopen the appeal and conduct a fresh hearing. To do so would amount to sitting on appeal over its own judgment, a jurisdiction this Court does not possess.
43. The prayers seeking to reopen this appeal for a fresh hearing therefore fail at the threshold for want of jurisdiction.
(b) Whether sufficient grounds for review have been established
44. The Applicant invokes the discovery of new and important evidence. The principles governing review are found under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. An applicant must demonstrate discovery of new and important matter which, despite the exercise of due diligence, was not within his knowledge or could not be produced at the time the decree was passed, or establish an error apparent on the face of the record, or any other sufficient reason.
45. In the case of NDUNGU NJAU vs NATIONAL BANK OF KENYA LTD. [2001] KEHC 868 (KLR), the court held that A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be stablished. It will not be a sufficient ground for review that another judge could have taken a different view of the matter. Nor can review be a ground for the court to rehear the case on the merits
46. The Applicant relies on prison records, archival records and hospital correspondence allegedly obtained after judgment. While the Court accepts that the documents were procured after judgment, that alone is insufficient. The Applicant must also demonstrate that they could not, with reasonable diligence, have been obtained before or during the hearing of the appeal.
47. No satisfactory explanation has been offered as to why investigations concerning the death of Makokha Kimida were only undertaken after the appeal had been dismissed, yet the issue of his date of death formed the cornerstone of the litigation from its inception in the subordinate court in 2018.
48. Litigation must come to an end. Parties are expected to place before the court all evidence reasonably available to them. Review is not intended to afford an unsuccessful litigant a second opportunity to strengthen a case after judgment.
49. Further, the documents relied upon do not conclusively displace the official death certificate produced before the trial court and admitted without objection. The correspondence from the hospital merely indicates that a body bearing the name "Makokha Kimida" was buried in a mass burial. It neither conclusively establishes that the deceased referred to therein is the same person reflected in the death certificate nor formally nullifies that certificate.
50. More importantly, the finding of fraud by both this Court and the trial court did not rest solely upon the date of death. The record demonstrates that the trial court also relied on forensic handwriting evidence impugning the authenticity of the impugned transfer documents. That constituted an independent evidentiary basis upon which fraud was established.
51. Accordingly, even if the alleged evidence were admitted, it would not necessarily alter the conclusions reached by the two courts. The Applicant has therefore failed to satisfy the threshold for review.
(c) Whether additional evidence can be admitted
52. The Applicant equally seeks leave to introduce additional evidence and to file a supplementary record of appeal.
53. Order 42 Rule 27 of the Civil Procedure Rules empowers an appellate court to admit additional evidence in exceptional circumstances while an appeal is pending. The principles governing admission of additional evidence were comprehensively set out by the Supreme Court in Mahamud v Mohamed & 3 others [2018] KESC 47 (KLR), where the court stated that:
“The court will only allow additional evidence where the evidence could not, with reasonable diligence, have been obtained for use at the trial, and where the evidence is of such weight that it would probably have an important influence on the result of the case”
54. However, that jurisdiction exists for purposes of determining a pending appeal. The appeal before this Court has already been heard and conclusively determined. There is no pending appeal in respect of which additional evidence can now be admitted.
55. In any event, for the reasons already given, the Applicant has failed to demonstrate that the evidence could not have been obtained earlier through reasonable diligence or that it would have a decisive bearing on the outcome of the appeal.
56. The prayer for admission of additional evidence is therefore without merit.
(d) Whether the Applicant is entitled to the ancillary reliefs sought.
57. The Applicant has also sought stay of execution, leave to bury the deceased upon the suit property, and orders setting aside the judgment of the subordinate court.
58. Having found that this Court lacks jurisdiction to reopen the appeal and that no grounds for review have been established, those prayers cannot stand.
59. The prayer seeking to set aside the judgment of the subordinate court is particularly untenable. This Court already exercised its appellate jurisdiction over that judgment and rendered its decision. It cannot revisit or nullify the subordinate court’s judgment afresh.
60. As regards the intended burial, the Court has already found under the first application that permitting the burial upon the suit property would undermine the implementation of a valid subsisting judgment and occasion irreversible prejudice.
61. Finally, the Applicant’s reliance on the criminal proceedings allegedly instituted against the Respondent does not assist his case. Criminal proceedings are independent of civil proceedings. The charge sheet annexed is merely an allegation. It neither amounts to proof of guilt nor impeaches the validity of the judgment rendered herein.
62. Likewise, the existence of two extracted decrees with differing contents is an issue capable of administrative rectification by the trial court and does not constitute a basis for reopening a concluded appeal.
63. In arriving at the foregoing determination, this Court has carefully weighed the competing rights and interests of the parties. On the one hand lies the Applicant’s entitlement to enjoy the fruits of a judgment lawfully obtained and affirmed on appeal; on the other lies the Appellants’ longstanding occupation of the suit property and their desire to inter the remains of their deceased relative thereon.
64. The Court is mindful that burial disputes evoke profound cultural and emotional considerations. Nonetheless, those considerations cannot override a subsisting judgment of a competent court or justify the creation of circumstances likely to defeat or impede its enforcement. Equally, the Court cannot enlarge the decree by granting eviction and demolition orders that were neither pleaded nor adjudicated. The orders made herein therefore preserve the integrity of the judgment while safeguarding the procedural rights of both parties, and in the Court’s view, best serve the ends of justice
DETERMINATION
65. In the premises, I find that the Notice of Motion dated 24th April 2026 is devoid of merit.
66. The same is hereby dismissed in its entirety.
FINAL ORDERS
Consequently, the Court makes the following final orders:
1. The Notice of Motion dated 10th April 2026 is allowed only to the extent that:
(a) An injunction is hereby issued restraining the Appellants, their agents or any person acting through them from interring the remains of the late Kalara Atieno Odhiambo on land parcel BUKHAYO/EBUSIBWABO/508 unless and until a court of competent jurisdiction orders otherwise.
(b) An injunction is hereby issued restraining the Appellants, their agents, servants or any person acting through or under them from undertaking any further developments, constructing any structures, cultivating, alienating, committing acts of waste, or otherwise interfering with land parcel number No. BUKHAYO/EBUSIBWABO/508 in a manner inconsistent with the judgment of this court, unless and until a court of competent jurisdiction orders otherwise.
2. The Notice of Motion dated 24th April 2026 is hereby dismissed in its entirety.
3. In view of the of the long history and stay on the suit property and the close relationship between the parties herein, each party shall bear its own costs.
67. It is so ordered.
Ruling dated, signed and delivered in open Court on this 16th day of July 2026.
C. MUGAMBI
JUDGE
16TH JULY 2026
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