16/04/2022
22. I have considered the judgment delivered by the court on 15th May 2020. I note that the court dismissed the Plaintiff’s suit with costs on grounds that the plaintiff failed to prove that the defendants acquired the suit property fraudulently. There is no positive order of eviction made in favour of the defendants in this case. Indeed, there was no counterclaim by the defendant for orders of eviction as currently sought. In my considered view, the orders sought cannot be obtained after delivery of judgment dismissing the plaintiff’s suit. [..]At this stage, this court is now functus officio having determined the issues and prayers that were presented in court before judgment was entered. Therefore, the orders sought by the Defendants can only be obtained in a fresh suit and not by way of notice of motion application in this matter. In the premises therefore, the application dated 5th October 2020 lacks merit and the same is dismissed with costs. Kyalo Tuta (suing as the legal representative of the estate of Wanza Tuta deceased) v Titus Wambua Ngoloma & 2 others [2022] eKLR
