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ELCAllowedNot stated in the ruling· [2020] KEELC 3723 (KLR)

Benson Ngungi Kironjo v Joel Kithaka Maringa & 66 others [2020] KEELC 3723 (KLR)

Environment and Land Court
6 February 2020
YAY.M. Angima
1,544 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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By a notice of motion dated 18th April 2019 under Section 91 of the Civil Procedure Act, the Defendant sought restoration of Blocks 131 and 136 within Gichiche Adjudication Section to their status as at 26th October 2006 as clan land, cancellation of titles issued pursuant to a Magistrate's Court order of 26th October 2006, and general damages for trespass and waste. The Defendant argued that the Respondents acquired the properties under an order that was subsequently reversed by the High Court in Embu HCCA No. 62 of 2009, entitling them to restitution. The Plaintiff opposed, contending that the court was functus officio after judgment, that Blocks 131 and 136 were outside the suit which concerned only Block 148, that the title-holders were never joined, and that reversal after over ten years would be too late. When the application came up for hearing, the Defendant orally sought transfer of the suit to the Magistrate's Court at Siakago as the court of first instance under Section 91, further invoking Section 18 of the Civil Procedure Act. The Plaintiff maintained the magistrate's court lacked jurisdiction and that damages were outside Section 91. The court held that the court of first instance for restitution is the court which passed the original decree later reversed, namely the Magistrate's Court at Siakago; that functus officio does not apply to restitution applications; and that additional prayers do not oust that court's jurisdiction. The court transferred the pending proceedings to Siakago for disposal of the motion, with re-transfer to the Environment and Land Court at Embu upon its disposal.

Key legal issues

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01

Identification of the court of first instance for restitution under Section 91

Holding

The Magistrate's Court at Siakago, which passed the order of 26th October 2006 later set aside by the High Court, is the court of first instance for purposes of restitution.

Reasoning

Section 91 contemplates that restitution following variation or reversal of a decree is effected by the court of first instance. That court is the one which passed the original decree subsequently overturned. Since the Siakago Magistrate's Court made the 2006 order which the High Court set aside on appeal in Embu HCCA No. 62 of 2009, it is the proper forum for the Defendant's restitution application.

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02

Jurisdiction to transfer the suit back to the subordinate court

Holding

The court had jurisdiction under Section 18 of the Civil Procedure Act or its inherent power to transfer the suit back to Siakago for the restitution application.

Reasoning

Section 18 vests the High Court with wide discretion to transfer suits pending before it to subordinate courts competent to try them, and subsection (2) contemplates retry or continuation from the point of transfer. The court held the additional prayers for damages and cancellation of titles would also fall within the court of first instance's jurisdiction to determine.

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03

Applicability of functus officio

Holding

Functus officio does not apply to an application for restitution under Section 91.

Reasoning

The Plaintiff argued the court became functus officio upon delivery of judgment. The court rejected this, holding that entertaining a restitution application after reversal of the underlying decree is not deciding afresh matters already determined, but simply an application within the meaning of Section 91. Any dispute about whether restitution has arisen is itself for the court of first instance.

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Legal principles established

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  • The court of first instance for purposes of restitution under Section 91 of the Civil Procedure Act is the court which passed the original decree or order that was subsequently reversed or set aside.
  • The doctrine of functus officio does not bar an application for restitution following reversal of a decree.
  • The High Court may transfer a suit to a subordinate court under Section 18 of the Civil Procedure Act or under its inherent power, and additional prayers do not oust the court of first instance's jurisdiction over the restitution claim.

Court orders

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  1. 1.The pending proceedings were transferred to the Magistrate's Court at Siakago for disposal of the Defendant's notice of motion dated 18th April 2019
  2. 2.The matter to be re-transferred back to the Environment and Land Court at Embu upon disposal of the said application
Jurisdiction invoked
Sections 18 and 91 of the Civil Procedure Act (Cap. 21)

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, "Benson Ngungi Kironjo v Joel Kithaka Maringa & 66 others [2020] KEELC 3723 (KLR)", Case Analysis (2020). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3723/eng@2020-02-06

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