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ELCPartially AllowedNot stated in judgment (Bondo Land Case No. 61 of 1967 and related matters referenced only as prior litigation)· [2019] KEELC 4623 (KLR)

Samson Isaac Otieno Osino & 3 others v Odhiambo Owuor & 8 others [2019] KEELC 4623 (KLR)

Environment and Land Court
13 February 2019
SKS.M. Kibunja
2,294 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to reopen a decades-old ownership dispute, confirming that final judgments cannot be revived through historical injustice claims to the National Land Commission.

What this practically means

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Executive summary

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The Judgment Debtors, represented by M/s Akolo Wanyanga & Company Advocates, moved the court by notice of motion dated 3rd November 2016 seeking leave for counsel to come on record, and setting aside of the judgment, decree and consequential orders so that the National Land Commission could investigate an alleged historical injustice in the registration of the suit land, North Sakwa/Maranda/7. The Decree Holders opposed through the replying affidavit of the 1st Decree Holder. The court traced the litigation history: the suit was filed in 1987 for possession and damages for trespass, judgment was entered by Mango J on 21st July 1993 after the ownership question had been decided in the parties' favour in the adjudication process, Bondo Land Case No. 61 of 1967, a resident magistrate's land appeal and a High Court appeal; the Court of Appeal dismissed the defendants' appeal on 28th March 1995 and later refused leave to appeal out of time on 19th May 2015. The court held that the ownership question had been conclusively determined and that a referral to the National Land Commission was impermissible because Section 15 of the National Land Commission Act requires a historical injustice to be unresolved and incapable of resolution through ordinary courts. The application was also found to be res judicata under Section 7 of the Civil Procedure Act. Relying on the functus officio doctrine as expounded in Dickson Muricho Muriuki, Telkom Kenya Limited v John Ochanda and Raila Odinga v IEBC, the court held it was functus officio and could only be moved on execution. Leave for counsel to come on record was granted, but the application was otherwise dismissed with costs to the Decree Holders and the file was closed.

Key legal issues

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01

Whether the judgment, decree and orders could be set aside to allow National Land Commission investigation of historical injustice

Holding

Refused; the claim is res judicata and the historical injustice claim has no basis under Section 15 of the National Land Commission Act

Reasoning

The ownership dispute was fully litigated through the adjudication objection, Bondo Land Case No. 61 of 1967, the RM land appeal, the High Court and the Court of Appeal. Section 15(2) and (3)(b) of the NLC Act require a historical injustice to be unresolved and incapable of resolution through ordinary courts. Referral would be an exercise in futility.

p. 3
02

Whether the court can re-engage with the decided issue of ownership

Holding

It cannot; the court is functus officio having rendered final judgment on 21st July 1993, with the Court of Appeal affirming

Reasoning

Relying on Dickson Muricho Muriuki, Telkom Kenya Limited v John Ochanda and Raila Odinga v IEBC, the court held that the functus officio doctrine bars merit-based re-engagement after final judgment and decree; only execution matters may be moved.

p. 4

Legal principles established

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  • Once a court has pronounced final judgment it becomes functus officio and cannot re-open the matter absent statutory authority
  • A historical injustice under Section 15 of the National Land Commission Act must be one not sufficiently resolved and not capable of being addressed through the ordinary court system

Court orders

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  1. 1.Leave granted to M/s Akolo Wanyanga & Company Advocates to come on record for the Judgment Debtors
  2. 2.The notice of motion dated 3rd November 2016 and filed on 4th November 2016 is dismissed with costs
  3. 3.The file be closed

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 7
  • Civil Procedure RulesOrder 22 Rule 22; Order 51 Rule 1
  • National Land Commission Act No. 5 of 2012Sections 15(2), 15(3)(b)

Cases cited (4)

  • Dickson Muricho Muriuki –v- Timothy Kagondu Muruiki & 6 others
    [2013] eKLR
  • Telkom Kenya Limited –v- John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya United
    [2014] eKLR
  • Raila Odinga –v- IEBC
  • Chandler –vs- Alberta Association of Architects
    [1989] 2 SCR 848
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 22 Rule 22, Order 51 Rule 1 of the Civil Procedure Rules

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, "Samson Isaac Otieno Osino & 3 others v Odhiambo Owuor & 8 others [2019] KEELC 4623 (KLR)", Case Analysis (2019). Not stated in judgment (Bondo Land Case No. 61 of 1967 and related matters referenced only as prior litigation). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4623/eng@2019-02-13

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