macload ago ombima VS benedina malesi macload ago ombima VS benedina malesi

Introduction
1. Before court is a Notice of Motion dated 14th October, 2024 filed by the plaintiff seeking the following orders;
a) That this Honourable court be pleased to order for eviction of the 1st and 2nd defendants alongside persons claiming under them, from Parcel No. Butsotso/Shikoti/1447.
b) That the Officer Commanding Kakamega police station to supervise the said eviction.
c) That costs be provided for.
2. The application is anchored on the affidavit sworn by the plaintiff on 14th October, 2024. The applicant’s case is that Parcel No. 1447 is registered in the joint names of Ombima Otiato, Magomere Omina, Apollo Zeyatsi Munubi, Richard Anaya Jairo Anyasi and Jotham Magomere Akambo who were siblings and who are now all deceased. That although this case was filed by Magomere Omino, Macload Ago Ombima substituted the plaintiff when he passed on.
3. He stated that the cause of action herein is whether the 1st and 2nd defendants who are the registered proprietors of Parcel Nos Butsotso/Shikoti/17151 and 17154, have encroached on Parcel No. 1447. That on 9th July, 2018, this court issued a consent order for a survey exercise to be undertaken and to ascertain the complaint of encroachment. That upon survey, it was ascertained that the plaintiff was in occupation of 0.23 Ha within parcel No. 1447 and not 0.4Ha which is the size of that parcel. That he had written to the 1st and 2nd defendants to give him vacant possession of the 0.17Ha that they were occupying but they have declined. He attached a certificate of title, survey report and a letter.
4. The application was opposed. Benedina Malesi the 1st defendant filed a replying affidavit on 24th January, 2025. He stated that he was the registered proprietor of the parcel of land known as No. Butsotso/Shikoti/17154 while Parcel No. 17154 was registered in the joint names of the 1st and 2nd defendants, which have been sold and transferred to Edwin Imbuga Lishamba who is the current registered owner. He stated that the two parcels are subdivisions of Parcel No. Butsotso/Shikoti/12638 and have no connection with the applicant’s Parcel No. Butsotso/Shikoti/1447.
5. It was his averment that in the consent order herein of 9th July, 2018, the court directed the County Surveyor to visit the properties herein and ascertain boundaries for the three parcels which was done and a survey report dated 1st November, 2019 filed. That the report was adopted as the judgment of the court and that the same did not state whether there was encroachment or not but stated that the boundaries on the ground were intact.
6. He stated that the report confirms that Parcel No. 1447 which the applicant occupies, measures 0.23Ha but that he claims to have bought one acre. That Parcel No. 17154 measures 0.06Ha and not 0.08Ha as per their title. He further averred that parties herein should be contented with the sizes of their respective parcels and they can only apply for correction of their respective acreages. He maintained that the Surveyor’s report does not in any way state that the defendants had encroached on the plaintiff’s parcel. That there were no orders or reliefs for eviction and that this suit was duly settled. That the claim for eviction is a new cause of action, is baseless and an abuse of the court process.
7. Parties filed submissions in support of their respective positions. The plaintiff/applicant’s submissions are dated 5th March, 2025 while the defendants’ submissions are dated 12th March, 2025; both of which the court has duly considered.
Analysis and determination
8. The court has carefully considered the application herein, the response thereto and the parties’ respective submissions. The issue for the court’s consideration is whether orders of eviction should issue as sought against the 1st and 2nd defendants.
9. The applicant/plaintiff herein has sought for orders that the 1st and 2nd defendants be evicted from parcel No. 1447 on the basis that the consent order of 9th July 2028 adopted the surveyor’s report as judgment of the court, wherein the surveyor found that the 1st and 2nd defendants had encroached on the plaintiff’s parcel No. 1447. That the plaintiff bought 1 acre yet the surveyors found that he was occupying o.23 Hectares and that Parcel No. 1447 was 0.23 Ha instead of 0.4 Ha.
10. I have considered the record. It is clear that the Surveyor Kakamega County, prepared a report dated 1st November 2019 which indicated that he visited parcel Nos. 17151, 17154 and 1447. This was pursuant to this court’s order requiring him to conduct survey exercise for purposes of establishing the specific boundaries of L. R. Nos Butsotso/Shikoti/17151, 17154 and 1447. The Surveyor indicated that upon taking measurements, it was found that the boundaries on the three parcels were intact and the acreages were found that the plaintiff occupied 0.23 hectares while the 1st and 2nd defendants. The Surveyor’s report was adopted as the judgment of the court on 25th February 2020 by consent of the parties. Although the plaintiff alleged that the report indicated that the 1st and 2nd defendants had encroached on the plaintiff’s parcel, no such findings are contained in the said report. In any event, the order sought to be complied with by the Surveyor was to ascertain boundaries and not find out if there was encroachment. Therefore, the order for eviction was never made by the court and the same is a new cause of action. Can the court reopen this matter and grant orders of eviction? I do not think so, since the court has already determined this matter by consent judgment, it has fully discharged its mandate in regard to this matter and is now functus officio.
11. In the case of Telcom Kenya Limited –vs- John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telcom Kenya Limited (2014) e KLR, the Court of Appeal held as follows;
“Functus Officio is an enduring principle of law that prevents the reopening of a matter before a court that rendered the final decision thereon.
The general rule that final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in Re-st Nazarire Co. (1879)12ch D.88. The basis for it was that the power to rehear was transferred by Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to the exceptions.”
12. Similarly, in the case of Raila Odinga & 2 Others –vs- Independent Electoral and Boundaries Commission & 3 Others (2013)e KLR, the Supreme Court of Kenya cited with approval an excerpt from an Article by Daniel Malan Pretorious entitled “The origins of the Functus Officio Doctrine, with special reference to its application in Administrative Law” (2005)122 SALJ832 which states;
“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality.
According to this doctrine, a person who is vested with ad judicature or decision making powers may as a general rule, exercise ….powers only once in relation to the same mater…..The (principle) is that once such a decision has been given, it is subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or valued by the decision maker”.
13. It is clear from the instant application that the 2nd respondent is seeking for grant of new orders which were not granted in the judgment. This court having discharged its mandate in determining the issues as presented by the parties, is now functus officio. In the premises, this court has no jurisdiction to grant the orders sought in the application dated 14th October, 2024 and the same is hereby dismissed with costs.
14. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 9TH DAY OF JULY, 2025

In the presence of;
Mr. Getanda for the defendants/respondents
No appearance for the defendant
Court Assistant: M. Nguyai