Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2019] KEELC 2464 (KLR)

Ejidio Kariithi Cimba (Suing as the Legal Representative of the Estate of Moses Gachoki Kimwea (Deceased) & another v Kirinyaga County Council & 2 others [2019] KEELC 2464 (KLR)

Environment and Land Court
28 June 2019
ECE.C. Cherono
928 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

The court refused to reopen a land case decided back in 2007, confirming that judges lose power to change their own final judgments.

What this practically means

#

Executive summary

#
This was a Notice of Motion dated 5th November 2018 by the Plaintiff/Applicant, Ejidio Kariithi Cimba, brought under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 1 Rule 3 of the Civil Procedure Rules. The suit had been heard and determined, with judgment and decree issued on 2nd November 2007. The Applicant sought amendment of the 1st defendant's name to read County Government of Kirinyaga, joinder of James Kamau Murango, Apollo Njeru and Peter Murimi Kanjobe as interested parties, citation of the defendants for contempt of orders issued on 28th January 2009, 25th March 2009 and 6th October 2009, orders of forceful eviction to enable execution of the decree, and costs. He argued the court retained jurisdiction because it remains seized of duties until it has perfected the judgment, citing Jersey Evening Post Ltd v Aithani. The 2nd Respondent, through Dan Njogu Kange, opposed the application as frivolous and belated, contending the judgment was not implementable because the land had already been set aside and cannot be set aside twice, and argued that joinder is only available in a pending suit. The court, E.C. Cherono, ELC Judge, held that once a court renders itself it becomes functus officio save for execution and perfecting the decree, applying Telkom Kenya Ltd v John Ochanda. Joinder after judgment would serve no useful purpose; the application was an abuse of court process, incompetent and bad in law. The application was dismissed with costs to the Respondents.

Key legal issues

#
01

Whether the court is functus officio after delivering judgment on 2nd November 2007

Holding

Yes; the court retains competence only for execution and perfecting the decree, so post-judgment joinder and contempt applications cannot be entertained

Reasoning

The court invoked the doctrine of functus officio as defined in Black's Law Dictionary and as stated by the Court of Appeal in Telkom Kenya Ltd v John Ochanda, holding that once final judgment is rendered, the court lacks further authority except in aid of execution. Enjoining parties to a concluded suit serves no useful purpose.

p. 2
02

Whether the applicant could enjoin third parties as interested parties after judgment

Holding

No; joinder is available only before judgment

Reasoning

Relying on Order I CPR as argued by the 2nd Respondent, the court held that joinder presupposes a pending suit; a suit concluded by judgment cannot accommodate new parties, and the attempted joinder was an abuse of the court's process.

p. 2

Legal principles established

#
  • A court becomes functus officio after judgment save for execution and perfecting the decree
  • Joinder of parties is only permissible before judgment, not after

Court orders

#
  1. 1.The Notice of Motion dated 5th November 2018 is dismissed with costs to the Respondents

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 1 Rule 3; Order I CPR

Cases cited (4)

  • Jersey Evening Post Ltd vs Aithani
    (2001) e K.L.R
  • Chacha Mwita Musenda Vs Baya Tsuma Baya & 2 others
    (2017) e K.L.R
  • Telkom Kenya Ltd Vs John Ochanda
    (2014) e K.L.R
  • Raila Odinga & 2 others Vs Independent Electoral & Boundaries Commission & 3 others
    (2013) e K.L.R
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 1 Rule 3 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ejidio Kariithi Cimba (Suing as the Legal Representative of the Estate of Moses Gachoki Kimwea (Deceased) & another v Kirinyaga County Council & 2 others [2019] KEELC 2464 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2464/eng@2019-06-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.