1. Vide a Notice of Motion (application) dated 27th November 2025 the applicant herein, Jackson Barasa Okinda Opata, seeks an order of injunction restraining the respondent by himself, his servants agents and/or any person claiming through him from interferring with the 2 acres comprised in the parcel of Land Known as L.R No. Marachi/Bujumba/543 awarded to him vide a decree of this court dated 28th March 2024.
2. The application is premised on the grounds on its face and supported by the affidavit of the applicant, sworn on 27th November 2025, in which the applicant has deponed as follows:-
“....
2. The Honourable Court issued an order in favour of me awarding me 2 acres out of LR No.Marachi/Bujumba/543 in March 2024...
3. That the respondent herein in an attempt to scuttle that award charged the suit property to a Bank;
4. That it is apparent that I cannot get registered as owner of the 2 acres because of the charge on the title:
6. That I pray that I be allowed to access the whole of the 2 acres, the respondent should be restrained from entering into, cultivating, using and/or in any manner whatsoever interfering with my free use of the 2 acres delineated and marked on the ground;
7. That the applicant herein prays that this application be allowed...”.
3. At the time of writing this ruling, the respondent had not filed a response thereto within thetime given by the court. Consequently, the application is unopposed.
4. I have read and considered the application, which is expressed to be brought under Sections 1, 1A, 1B, 3 & 3A of the Civil Procedure Act; Order 40 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution of Kenya, 2010. I have also taken into account that the application is premised on a decree of this Court given on 28th March 2024, which is as follows:-
“IT HAS HEREBY BEEN ORDERED:
1. The plaintiff is entitled to a portion of the land parcel No.Marachi/Bujumba/543 (if it has reverted back) or the resultant subdivision being Marachi/Bujumba/1430, 1431 and 1432.
2. The defendant shall within 30 days of this judgment surrender to the Land Registrar the original title to the land parcel No. Marachi/Bujumba/1430, 1431 and 1432 for cancellation and execute all necessary documents to facilitate the registration of 2 acres in the name of the plaintiff.
3. The Land Registrar and surveyor will ensure that as much as possible, the 2 acres to be registered in the name of the plaintiff will include the portion of land which he is currently in occupation of;
4. In default of (2), the Deputy Registrar shall execute all relevant documents on behalf of the Defendant.
5. Each party shall meet the costs of this suit”.
5. It is clear from the decree of the Court that the Court did not issue any order of eviction or any order restraining the respondent from interferring with the applicant’s peaceful use and occupation of the two acres awarded. That was so because no such order was sought by the applicant as his case was premised on alleged peaceful use and enjoyment of a portion of the suit property as a person who had been in adverse possession of the two acres awarded to him.
6. Upon grant of the reliefs sought by the applicant in his suit, the Court became functus officio on the issues raised in the suit. As such it cannot be called upon to consider or determine issues not raised in the suit presented before it.
7. It is the considered view of this court that if issues arise affecting execution of the decree issued by it, as has happened in this case, the proper officer to deal with those issues is the Deputy Registrar of the court who deals with matters concerning execution of decrees issued by the Court. In that regard I rely on Order 49 Rule 7(1)(b) (x) as read with Order 22 Rule 6 and Rule 82.
Order 49 Rule 7(1)(b)(x) provides as follows:-
“ The Registrar May-
(a)....
(b) hear and determine an application made under
the following Orders and Rules:-
(a).............
(x) Order 22 other than under Rules 28 and 75. “
Order 22 Rule 6 and Rule 82, on the other hand, provide as follows:-
“6. Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree...or the proper officer thereof, and application under this rule shall be in accordance with Form 14 of Appendix A...
82(1). Where the holder of a decree for possession of immovable property or...is resisted or o.bstructed by a person in obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction.
2. The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same”.
8. In his application, the applicant has indicated that a third party, in the name of a bank has gained interest in the suit property, the same having been charged to it. The applicant has not revealed to this Court which bank and when it gained interest to the suit property. Be it as it may, based on the applicant’s disclosure that a third party has gained interest in the suit property, I am afraid that this Court cannot issue orders likely to adversely affect a third party, without affording the third party an opportunity to be heard on the application. The right to be heard before any orders likely to affect the rights of another person is cardinal. Consequently, a court of law cannot grant orders that are likely to affect a disclosed third party without affording it an opportunity to be heard on the issue under consideration by the Court.
9. The upshot of the foregoing is that I find the application to be ill-advised to the extent that it seeks orders that were not sought and granted in the primary suit and that the issues raised ought to be addressed by the Deputy Registrar of this Court in discharge of his or her administrative duties under Order 49 of the Civil Procedure Rules.
10. Consequently, I dismiss the application dated 27th November 2025 with no orders as to costs the same having been undefended.
Ruling dated, signed and delivered at Busia this 21st day of May, 2026
In the presence of;-
Mr. Ashioya for the Plaintiff/Applicant
Ms Kembe for the Defendant/Respondent
Court Assistant: Tracy