Estate Sonrisa Limited v Samuel Kamau Macharia & 1 other

The Court applied the functus officio doctrine as stated in Menginya Salim Murgani, Telkom Kenya v John Ochanda and Kenya Broadcasting Corporation v Geoffrey Wakio. A court becomes functus officio once proceedings are fully concluded and the judgment perfected; however, proceedings incidental to, or a natural consequence of, the final decision remain open. The Court of Appeal had referred the encroachment question to the Land Registrar, and until that issue was resolved with finality the decree was unperfected, so the trial court misdirected itself in holding it was functus officio.

Section 86 of the Land Registration Act provides a statutory avenue for a party aggrieved by the Registrar's decision to approach the court by way of a case stated for the court's opinion, alongside Sections 79(3A), 80 and 91(9). Because the encroachment issue had been referred by the Court of Appeal to the Land Registrar, and the Registrar produced a report, the aggrieved party's recourse was a case stated. The trial court was therefore empowered to hear it. Further, under Section 4 of the Appellate Jurisdiction Act, the Environment and Land Court has power to execute this Court's decisions.

The court noted that Dena, J. had struck out the Kwale case stated because it was filed as a separate action instead of within the original proceedings, offending Section 34 of the Civil Procedure Act, and Naikuni, J. had directed that execution questions arising from the Mombasa decree be dealt with within that suit. Since the Kwale suit was not determined on its merits and parties were referred to the correct court, there was no parallel determination that justified the trial judge's refusal to engage; that refusal was a misdirection.

Sections 19 and 20 of the Land Registration Act establish the Land Registrar as the primary authority for fixing and maintaining boundaries, empowering the Registrar to summon survey records and other evidence. Because the Court of Appeal had referred the encroachment question to the Registrar, whether the case stated was framed as encroachment or as a boundary dispute, it remained within the realm of the outstanding dispute left to be resolved, and the trial court's contrary characterisation could not defeat jurisdiction.