A.Introduction,
1.Before this Court is the 4th Defendant/Applicant's Notice of Motion dated 26.6.2026 brought pursuant to Sections 3A of the Civil Procedure Act, order 51 rule 1 of the civil procedure rules and all other enabling provisions of the law.
a-spent
b-The Plaintiff /Respondent be ordered to grant forthwith the 4th Defendant /Applicant and/or her authorized agents access to land parcel number 12180 to remove and retrieve all her movable property, equipment and the items listed in the schedule marked LMM2 within 7 days of this order.
c-The Officer Commanding Police Division Voi police station or any other police officer(s) be directed to provide necessary assistance and protection to the applicant and/or her agents during the retrieval of the said items.
d-The Costs of this application be borne by the Plaintiff /Respondent.
2.The Application is supported by the affidavit dated 26.6.2026 sworn by Lillian Mercy Mutua ,grounds on its face and written submissions dated 16.7.2026 .
3.The Applicant deposed that she invested in mining project on parcel LRNO 12180 to the tune of over kshs 50,000,000/= on which she left high value mining tools, macninery,generators ,solar panels, fencing materials ,household items and 1000kg of golden tourmaline gemstones worth over kshs 10,000,000/= as per annexture marked LMM2 while vacating the suit land in compliance with the court judgment .The Applicant/4th Defendant deposed that she constructed a permanent house on the suit premise where all her documents and other ownership documents are kept.
4.She submitted being subject to extreme hostility from the Plaintiff/ Respondent while attempting to access and retrieve her prsonal amd movable items out of the suit property .she stated that the Respondent/Plaintiff is adamant to allow her entry in the suit property despite several requests hence exposing the gemstones and other valuable commodities to theft, damage, loss or disposal by the respondent unless granted access to the suit property for retrieval purposes as no loss shall be suffered by the plaintiff/respondent should the application be granted.
5. The Respondent/Plaintiff submitted vide grounds of opposition and written submissions dated 13.7.2026 and 20.7.2026 that the Application is frivolous, an abuse of the Court process and seeks to relitigate a concluded matter. It was deposed by The Respondent/Plaintiff that this Honourable Court is already functus officio as regards to the issue of occupation of the suit parcel of land, The Application is seeking an appeal from this court on its own judgement rendered on 2/10/2024 4,Applicant is guilty of laches and application is premature, incompetent, and bad in law .
6.The Application was directed to be disposed of by way of written submissions to which the parties complied though belatedly by the Respondent which I have considered.
Parties submissions:
7.The Applicant submitted that she is entitled to protection of her property under article 40 of the constitution of Kenya 2010 hence the request for supervised entry into the suit property to remove her personal and movable properties since they do not belong to the plaintiff citing sections 108(h) of the land Act ,2012.She submitted further that she has been denied access to the suit property due to hostility from the plaintiff hence her valuable properties inclusive of gemstones worth over kshs 50,000.000/= are likely to be wasted and destroyed if application is declined citing the cases of Mocha Hotel limited vs Kwanza Estates limited (2025)KEELC 4303(KLR), Mbunge t/a Mbunge Enterprises vs Murithia Holdings limited (2026)KEHC7259(KLR) in support of her averments.
8.The Plaintiff/Respondent submitted that the Applicant/4th Defendant is guilty of laches ,court is functus officio , application ikehc4754s bad in law ,premature and should be dismissed with costs placing reliance on case of Kabansora Millers ltd vs Nyangena(2025)(klr) and Orenge t/a Orenge J and Associates vs Nthiga (2025)kehc505(klr).
C. Issues for determination:
9.Upon careful consideration of the Applicant’s written submissions, affidavit in support, grounds of opposition and written submissions on record the issues for determination by the court are as follows :
a) Whether Applicant is entitled to supervised entry in the suit land to remove her valuable properties.
b) Whether the Court is Functus Officio
c) Who to pay costs of the Application.
10.Article 28 of the constitution of Kenya 2010 upholds human dignity which provides that “Every person has inherent dignity and the right to have that dignity respected and protected”.
11.Article 40 of the constitution of kenya 2010 upholds protection of right to own property in any part of kenya which right can only be extinguished on account compulsory acquisition by the suit for public interest , sale to another or operation of the law.
12.Section 108(2) (b ) of the land Act ,2012 mandates National land Commission to enter and assess the value for compulsorily acquired freehold land upon serving on the occupier a not less than seven days written notice of the intention to enter. Ownership of enumerated movable properties by the Applicant/4th Defendant per annexure marked LLM2 is not disputed by Plaintiff/Respondent hence deserving constitutional protection under article 40 of constitution of kenya 2010 unless dictated by operation of the law. Sections 108(2)(b) of the Land Act, 2012 applies to right to enter land upon service of seven days to the occupier by the commission to assess the value of land identified for compulsory acquisition purposes. The suit land in question belongs to the plaintiff and not subject to compulsory acquisition by the state.
13. The Applicant acknowledges being declared a trespasser on the suit land vide the judgement of the Honourable Court dated 2.10.2024 which ordered her to vacate the suit land and give vacant possession to the plaintiff within 90 days ,in default of which eviction orders shall issue. The Applicant/4th Defendant acknowledges in paragraph 1 of her affidavit dated and sworn on 26.6.2026 that her mining permit was cancelled on 2.10.2024 rendering her a trespasser to and ordered to vacate the suit land. The Applicant’s deposition that she left behind high value equipment on the ground inclusive of 1000kgs of golden tourmaline gemstone worth over kshs 10,000,000/= on account of hostility of /plaintiff/respondent in compliance with the court’s judgment dated 2.10.2024 is silent on when she commenced vacating the suit land in compliance with the court’s judgment dated 2.10.2024.
14. The Applicant/4th Defendant asserted that she made requests to the Respondent/Plaintiff to allow her access the suit property to no avail which allegation has not been demonstrated by Applicant /4th Defendant how and when she communicated to the Respondent/Plaintiff to be granted access to and remove her movable properties out of the suit land.
15.Furthermore The Applicant/4th Defendant has not placed material evidence before this court to prove the extent of compliance with the court’s judgement /decree dated 2.10.2024 in terms of payment of compensation awarded to the Plaintiff/Respondent or any other awards for environmental restoration and decommissioning of the mining location No 149/1-10 Machungwa ‘A” Kasigau Ranch under Supervision of the National Environment and Management Authority .The Applicant/4th Defendant ,however opted to file and pay for chamber summons application dated 23.3.2026 for extension of time to file appeal out of time and variation of the terms of court order dated 6.3.2025 on 1.4.2026 and 3.4.2026 respectively which application was dismissed on 13.7.2026 on account of inordinate delay on the part of applicant in filing the application .
16.The reliefs sought by the Applicant in chamber summons dated 26.6.2026 are discretionary in nature which the court can only grant if the applicant shows reasonable cause why she could not remove the items during the time of compliance with court order. It is upon the applicant to show that no hardship or prejudice shall be occasioned to the respondent in the event the orders of re-entry to the suit land to remove her movable valuable properties are granted in her favor placing reliance in the case of Atinga v Ogumbo & 2 others ( [2025] KEELC 1274 (KLR).
17. It is a cardinal principle that He who comes to equity comes with clean hands. Based on the reasoning above the Applicant/4th Defendant has not come to court with clean hands hence not deserving of the orders sought for in chamber summons dated 26.6.2026.
D. Whether the court is functus officio:
18.The Respondent/Plaintiff opposed the application on grounds that the court is functus officio having rendered its judgment on the matter on 2.10.2024 placing reliance on the case of Kabansora Millers ltd vs Nyangena (2025)klr which restated that a court ceases to have jurisdiction over the matter it has heard and determined unless exceptional circumstances are shown by the applicant.
19.Black laws dictionary nineth edition defines Functus officio as “Having performed his or her office (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.
20.The court in the case of Orenge t/a Orenge J and Associates vs Nthiga (2025)kehc505(klr) reemphasised that the principle of finality in litigation is sacrosanct and courts must guard against abuse of process through applications that seek to relitigate matters that have already been determined.
21.The court of Appeal in the case of Telkom Kenya limited vs Ochanda (suing on behalf of employees of Telkom kenya ltd)(2014 )eklr defined functus office as one of the mechanisms by means of which the law gives expression to the principle of finality. .In the case of Jersey Evening Post Limited v Al Thani (2002) JLR cited with approval by the supreme court of Kenya in the case of Raila Odinga &Another vs IEBC (2017)eklr where the court emphasised that a court is deemed functus officio when it has performed all its duties in a particular case though not prevented from correcting clerical errors nor from a judicial change of mind even when a decision has been communicated to the parties.
22.It is trite that once a court renders itself on a matter ,its decision is final and subject to challenge on appeal except on clerical errors can the court review its decision pursuant to section 99 of Civil Procedure Act,2010.The court rendered its judgment against the Applicant and other Defendants on the 2.10.2024 and cannot review it unless on errors oblivious on record.
23.It is not doubted the Applicant/4th Defendant was granted conditional stay on the suit land upon depositing the sum of kshs 5000,000/= in a joint interest earning account in the names of the counsel for the Plaintiff /Respondent and Applicant/4th Defendant within 30 days from 6.3.2025 pending hearing and determination of appeal failure of which the stay of execution orders shall lapse. The orders lapsed on 5.4.2025 thereby rendering Applicant a trespasser to the suit land unless her entry therein was authorised by a court of law. The Applicant moved the court on 3.4.2026 vide application dated 23.3.2026 for extension of time to appeal out of time and variation of orders of the court dated 6.3.2025 which was dismissed on 13.7.2026. The Applicant/4th Defendant was granted adequate time from 2.10.2024 up to 5.4.2025 both periods inclusive to comply with the judgment of the court inclusive of removing her movable and valuable properties out of the suit land but in vain.
24. It is only prudent that any other proceedings touching this matter should be placed before the Appellate bench by Applicant for hearing and determination , not this court as doing so amounts to inviting the court to grant Applicant permission to re-enter the suit land yet time for delivering vacant possession to the Respondent had expired .Furthermore it is akin to asking the court to sit on Appeal on its own orders and review it in favor of Applicant. Based on the above reasoning I find that the Applicant is guilty of abuse of due process of the law hence not deserving of the orders sought from this court. On the same breath this court is functus officio therefore incapable of granting the orders sought for by the Applicant.
E.Final Orders:
25..Based on the reasoning above I find the Application dated 26.6.2026 is not merited hence dismissed with costs to the Plaintiff/Respondent.
Delivered, dated and signed this 23.7.2026 in open court at Voi this 23.7.2026 in the presence of :
Mr kangogo for the applicant /4th Defendant
Mr Getange for the Plaintiff/Respondent.
Mr letisiah Court Assistant.
By J Orwa
Judge.