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ELCDismissed· [2019] KEELC 3512 (KLR)

Chosen Children International v County Government of Trans-Nzoia & 2 others [2019] KEELC 3512 (KLR)

Environment and Land Court
29 April 2019
MNMwangi Njoroge
1,340 words in judgment
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The bottom line

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A Kenyan court refused to reopen its judgment, confirming that once judgment is delivered, your only real option is to appeal.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Mwangi Njoroge, J) on the plaintiff's application dated 27/2/2019 seeking to set aside the court's judgment of 29/1/2019 in a constitutional petition concerning alleged violation of Article 40(1) property rights and discrimination relating to land, on the ground that the parties had been negotiating a settlement. The 3rd respondent opposed the motion, contending that there was no evidence of negotiations involving all parties, that the applicant's remedy was appeal or review, and that the court had become functus officio after delivering judgment. The court found no proof in the supporting affidavit that the parties were negotiating a settlement or that all parties were involved, and declined to disturb the judgment on that ground alone. It observed that a constitutional petition addresses weightier issues of constitutional violation, not private ownership disputes, and noted that the petition's real dispute - who was the proper allottee of the suit land - should have been brought by plaint, echoing its earlier judgment which had applied Shimoni Resorts v Registrar of Titles and Chemey Investments Ltd v A.G. & Others. The court held that it was functus officio and that the only remedy open to the applicant was an appeal, while disagreeing that review was available since no grounds for review had been advanced. It also rejected the claim that judgment had been delivered without the parties' knowledge, citing the Deputy Registrar's notice of 3/12/2018 rescheduling the judgment to 29/1/2019. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the parties' alleged settlement negotiations justified setting aside the judgment

Holding

The application failed because the supporting affidavit contained no evidence of negotiations involving all parties

Reasoning

The affidavit supporting the application was a brief 7-paragraph affidavit which did not demonstrate that the parties were negotiating a settlement or that all parties were involved. The court found the 3rd respondent's ground correct and held that on that ground alone it was unnecessary to disturb the judgment, particularly as any settlement on violation of rights would require the concurrence of the 3rd respondent.

p. 1
02

Functus officio and available remedies

Holding

The court was functus officio after judgment; appeal was available as of right but no grounds for review were advanced

Reasoning

The court agreed with the 3rd respondent that after delivering judgment it was functus officio and the only remedy open to the applicant was an appeal. However, it disagreed that review was a possible remedy since, whereas an appeal lies as of right save in specified circumstances, no grounds supporting a review had been advanced.

p. 2
03

Whether judgment was delivered without the parties' knowledge

Holding

The parties were notified via the Deputy Registrar's notice of 3/12/2018 and lack of knowledge of the judgment date was not material

Reasoning

The record showed a notice from the Deputy Registrar dated 3/12/2018 indicating that judgments and rulings set for 4th, 5th and 6th December 2018, including this judgment, would be delivered on 29/1/2019. The parties must have been aware and none applied to arrest the judgment; counsel had also appeared at mention dates after judgment was delivered.

p. 2

Legal principles established

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  • After delivering judgment a court is functus officio and the only remedy open to a dissatisfied party is an appeal; review requires grounds which must be advanced
  • A constitutional petition is meant to address violations of constitutional rights, not private disputes over ownership of land; such disputes should be pursued by plaint

Court orders

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  1. 1.The application dated 27/2/2019 is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 40(1)
  • Civil Procedure ActNot specified
  • Civil Procedure RulesNot specified

Cases cited (2)

  • Shimoni Resorts -vs- Registrar of Titles
    2016 eKLR
  • Chemey Investments Ltd -vs- A.G. & Others
    2018 eKLR
Jurisdiction invoked
Inherent jurisdiction under the Civil Procedure Act and Civil Procedure Rules to set aside judgment; petition filed under Article 40(1) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chosen Children International v County Government of Trans-Nzoia & 2 others [2019] KEELC 3512 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3512/eng@2019-04-29

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