1. This ruling is in respect of the Applicants’ Notice of Motion Application dated 9th December, 2024 which seeks the following orders:
a) Spent
b) THAT this Honourable Court be pleased to re-issue eviction order dated 3rd September, 2021 evicting the Defendants as listed on Plaint in Nakuru ELC No. 334 of 2014, their assignees, servants, agents or any other persons acting on their behalves from the Plaintiffs/Applicants property namely LR NO. Moi Ndabi Settlement Scheme Phase 1.
c) THAT further to the above, this Honourable Court be pleased to issue an order of eviction against all the Plaintiffs in Nakuru ELC No 338 of 2014, their servants, agents or any other persons acting on their behalves from the Plaintiffs/Applicants’ property namely LR No. Moi Ndabi Settlement Scheme Phase 1.
d) THAT this Honourable Court do issue an order to the Naivasha Sub County Police Commander and OCS Kongoni Police Station to assist in the execution of the eviction orders.
e) THAT the costs of this application be provided for.
3. He further deponed that vide judgment dated 25th February, 2021, this court ordered that the Defendants in ELC No 334 of 2014 to vacate all that land comprised in Moi Ndabi Settlement Scheme Phase 1 within forty-five days from the date of the delivery of judgment and in default they should be evicted.
4. The Applicant further stated that the court orders were not complied with therefore they filed an application dated 25th February, 2021 where the court gave orders allowing auctioneers and the OCS Kongoni Police Station to ensure compliance with the judgment dated 25th February, 2021. He deponed that the Respondents appealed against the said orders at the Court of Appeal and stay orders were issued.
5. Francis Ngugi Githua further deponed that the Respondents failed to institute their appeal within the stipulated time and an application dated 31st October 2023 was filed for extension of time to file their Memorandum of Appeal and Record of Appeal but the same was dismissed in a ruling dated 12th April, 2024 which was upheld by the Court of Appeal in a ruling dated 22nd November, 2024. He urged the Court to therefore allow the application as prayed.
6. Paul Ndirangu Mbugua filed a Replying Affidavit sworn on 11th February, 2025, and deponed that the application lacks merit as prayers (b) and (c) as sought offend the doctrine of functus officio and res judicata. He opposed the application and deponed that in the event the orders sought are granted, their constitutional and human rights will be infringed.
7. Francis Ngugi Githua filed a Further Affidavit sworn on 17th February, 2025. He deponed that re-issuance of eviction orders dated 3rd September, 2021 does not amount to res judicata as indicated by the Respondents.
RESPONDENTS' SUBMISSIONS
8. Counsel for the Respondents filed submissions dated 19th May 2025 and identified the issues for determination as whether this Honourable Court should grant prayers (b) and (c) in the Application dated 9th December 2024. Counsel submitted that prayer (b) in the application is without merit as the stay of execution orders issued by the Court of Appeal by virtue of the Ruling dated 15th December, 2022, are still in force and have not been set aside. Counsel relied on the case of Musyoka Mutie Makau vs Munyao Mutie Makau and another, Machakos H.C Civil Case No 110 of 2011
9. Counsel further submitted that the application offends the legal doctrines of functus officio and res judicata as the Applicants have sought to expand the said order by including the wording “their assignees, servants, agents or any other persons acting on their behalf from the Plaintiffs/Applicants' property.” Counsel submitted that this is a complete change from order (d) in the Judgment dated 25th February, 2021.
10. Counsel submitted that the claim by the Applicants that they are the legal owners of all the parcels in Moi Ndabi Settlement Scheme Phase 1 is false and aimed at misleading this Court. Counsel also relied on Section 7 of the Civil Procedure Act and the case of The Independent Electoral and Boundaries Commission vs Maina Kiai and others, Nairobi Court of Appeal Civil Appeal No 105 of 2017 and submitted that prayer (c) offends the legal doctrine of res-judicata as the Applicants in their application dated 14th April, 2021 already sought this prayer and this Honourable Court via its ruling of 14th June, 2021 already addressed this issue.
11. Counsel relied on Order 21 Rule 3 (3) of the Civil Procedure Rules and the case of Serve in Love Africa (SILA) Trust vs Abraham Kiptarus Kiptoo and others, Eldoret ELC Case No 21 of 2017. Counsel submitted that the Applicants have failed to demonstrate before this Honourable Court how they have complied with Section 152 E of the Land Act No 6 of 2012 on eviction notices and Section 152 G of the Land Act No 6 of 2012 on mandatory procedures during eviction, and as such, the Application lacks merit.
ANALYSIS AND DETERMINATION
12. The issue for determination is whether the applicants are entitled to the orders sought in the Notice of Motion application dated 9th December, 2024.
13. It is not disputed that there is a valid Judgment and decree of this court, which has not been satisfied. The Plaintiffs and the Defendants acknowledge the same, and the record speaks for itself.
14. The Respondents have raised an issue of res judicata and functus officio, which in my opinion does not apply in this case. The Applicants are seeking a reissue of an eviction order as per the Judgment and decree of this court. They are not seeking fresh orders, which are not in line with the Judgment.
15. In the case of Ngunjiri & another v Karanja (Environment and Land Case Civil Suit 458 of 2007) [2022] KEELC 27 (KLR) (26 April 2022), the court held as follows:
“With regard to the other reliefs, it is not disputed that the plaintiffs have a decree issued by this court for possession of the suit properties. It is also not disputed that the decree has not been varied or set aside. It is also not disputed that the plaintiffs have to date not been given possession of the suit properties by the defendant.
16. The decree of this court has not been satisfied; hence, I find that the application has merit and is therefore allowed. I therefore issue specific orders as follows:
a) THAT this Honourable Court has hereby re-issued the eviction order dated 3rd September, 2021, evicting the Defendants as listed on the Plaint in Nakuru ELC No. 334 of 2014, their assignees, servants, agents or any other persons acting on their behalf from the Plaintiffs/Applicants' property, namely LR NO. Moi Ndabi Settlement Scheme Phase 1.
b) THAT further to the above, this Honourable Court has hereby issued an order of eviction against all the Plaintiffs in Nakuru ELC No 338 of 2014, their servants, agents or any other persons acting on their behalf from the Plaintiffs/Applicants’ property, namely LR No. Moi Ndabi Settlement Scheme Phase 1.
c) THAT the Naivasha Sub County Police Commander and OCS Kongoni Police Station are hereby directed to assist in the execution of the eviction orders.
d) Costs to the Plaintiffs.