Introduction
1. Before court is a Notice of Motion dated 5th July, 2025 filed by the 1st plaintiff seeking the following orders;
a) Spent.
b) That the Honourable court compel the respondents holding in trust for portion of land parcels S. Kabras/Chemuche/2908, 2909, 2316, 2317, 3586, 3587 and 3588 transfer the same to the applicant LABAN WANYAMA MUVIA & ALFAYO KOFIA MUVIA jointly for themselves and hold in trust for other siblings, failure to which the Deputy Registrar of this Honourable court be empowered to sign all relevant transfer forms on behalf of the respondents.
c) That: District Land Registrar be ordered to remove caution/restriction placed on the suit parcels S. Kabras/Chemuche/2908, 2909, 2316, 2317, 3586, 3587 and 3588.
2. The application is predicated on the affidavit sworn by the 1st plaintiff/applicant on 5th July, 2024. The applicant’s case is that he is one of the proprietors of parcel numbers S. Kabras/Chemuche/2908, 2909, 2316, 2317, 3586, 3587 and 3588 and that judgement was entered in his favour on 5th November, 2019. Further that the defendants held the suit property in trust for him but that they have failed to comply with the judgment and are now planning to sell part of the land. That they have also been denied access and utilization of their parcels. He further stated that there may be need for the caution to be removed to enable transfer process to be undertaken.
3. The application was opposed. Reuben Muvia Masika filed a replying affidavit dated 9th August, 2024. He stated that he filed Appeal No. E90 of 2020 against the judgement which is still pending hearing at Kisumu. That before the judgment, the applicants had been in possession of their portions and their houses are on the land and they use their portions independently. That Laban has a home, sugarcane and maize crop on his portion and Alfayo Kofia Muvia stays on his portion and is currently planning to plant sugarcane. He maintained that he had no plans of changing the status quo prevailing as at the time of judgment and that the suit property is not for sale. He attached a Memorandum of Appeal.
4. The application was disposed by way of written submissions. On record are applicants undated submissions and the respondent’s submissions dated 25th September, 2025 both of which the court has duly considered.
Analysis and Determination
5. The court has carefully considered the application, response and the parties’ rival submissions. The issues arising for the court’s determination are whether the orders sought are necessary for implementation of the judgment delivered herein.
6. The court has considered the judgment delivered herein on 5th November 2019. The judgment shows that the plaintiff sought for two orders; namely; a declaration that the defendants are holding titles of the suit property in trust for the plaintiff and his siblings, and; a permanent injunction against the defendants from interfering with the plaintiff's peaceful occupation of their portion of land. Upon hearing the suit, the court granted the two prayers sought by the plaintiffs. It is therefore clear that the judgment neither ordered for the transfer of the suit property to the applicants nor made any reference to any caution or restriction.
7. Therefore, the issue of transfer of the suit property to the plaintiffs and removal of caution and restriction are new and fresh causes of action which did not arise in the proceedings herein and were not granted by the court’s judgment. The mandate of this court was to interrogate whether the plaintiffs were entitled to the orders sought in their pleadings and that was done exhaustively as demonstrated by the judgment herein. This court having exhausted its mandate in granting declaration and injunctive orders in the judgment as sought by the plaintiffs, there is nothing left for the court’s determination and the court has no residual mandate or jurisdiction to issue the orders sought in the instant application. Therefore, in so far as the orders sought are concerned, this court is functus officio. As the orders sought do not align with the judgment, it is my view that granting them will not be implementing the judgment but granting a fresh cause of action which cannot be dealt with in this suit and through an application.
8. I must point out that there is an emerging trend where parties and counsel file claims without reflecting on the efficacy of the reliefs sought. Once the matter is determined, and they realize that the orders sought and granted do not bring the desired answer to their legal need, they file applications seeking orders which they did not seek in their pleadings and which the court did not grant in the judgment. That is not a proper practice. In this case, the plaintiffs sought and obtained declaratory orders and injunction. No transfer was sought by them. Therefore, what they are seeking in the instant application is what they ought to have sought in their plaint. They cannot seek those orders at this stage as this court has no mandate at this stage to grant the same.
9. Declaratory orders mainly declare rights of parties but do not compel positive action against a defendant and therefore parties need to think through their case before bringing it to court to know whether the orders sought are fit for purpose. If what a party sought in their pleading has not satisfied their legal need, they may need to consider whether they need to file afresh suit.
10. In this case as the court did not order transfer of the suit property or make any pronouncements regarding a caution and or a restriction, I take the view that what the plaintiff is seeking is a fresh cause of action. This court being functus officio cannot address the fresh cause of action raised by the plaintiff in this matter.
11. In the premises, I find and hold that this court has no jurisdiction to order transfer of the suit property to the applicants, or removal of cautions or restrictions from the titles of the suit property. In the end, I strike out the application dated 5th July, 2024 for want of Jurisdiction. I make no order as to costs.
12. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THIS 13TH DAY OF MARCH, 2025 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM.
In the presence of;
Mr. Laban Wanyama Muvia the applicant in person present
Mr. Momanyi for the respondent
Court Assistant: M. Nguyai