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ELCDismissedNot stated in the judgment (formerly a judicial review matter transferred from the High Court)· [2021] KEELC 438 (KLR)

Republic v Chairman Land Disputes Tribunal Kakamega Municipality Ex Parte James Sakwa Mukolwe; Alfred N. Andati & 5 others (Interested Parties) [2021] KEELC 438 (KLR)

Environment and Land Court
7 December 2021
1,601 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reopen a 2014 land case, confirming that judgments are final and belated applications asking courts to change their minds will fail.

What this practically means

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Executive summary

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The 5th Interested Party, Amina Abdi Pfizer, brought a Notice of Motion dated 6th October 2021 seeking review of orders made on 12th June 2014 by Said J. Chitembwe J in a judicial review suit originally commenced to quash a decision of the Land Disputes Tribunal Kakamega Division. The 2014 ruling dismissed the judicial review application and empowered the Deputy Registrar, High Court Kakamega, to execute documents facilitating subdivision and transfer of 0.1 hectares from land parcel Butsotso/Shikoti/4464 to the applicant. The new application sought review of those orders and, additionally, cancellation of titles and rectification of the register relating to parcels Butsotso/Shikoti/4464 and Butsotso/Shikoti/1859. The applicant claimed to have occupied and developed 0.1 hectares of parcel 1859 for over twelve years without being evicted. The 1st and 2nd Interested Parties did not oppose; the ex parte applicant, respondent and other interested parties did not attend or respond despite service. The court, noting the judge who made the 2014 order was no longer stationed at Kakamega, proceeded to determine the application. It dismissed the prayer for review because the delay of almost eight years was unexplained and unreasonable, and because no ground under Order 45 Rule 1 was identified. Prayers 3 and 4, seeking cancellation of titles, were struck out as substantive reliefs beyond the concluded judgment: the court held it was functus officio, citing the Supreme Court's adoption of the Pretorius formulation in Raila Odinga v IEBC, and applied the principle that a suit filed in a court devoid of jurisdiction is dead on arrival. Each party was ordered to bear its own costs. The court cautioned the parties against endless applications, advising any viable claims be brought as fresh suits.

Key legal issues

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01

Review of the 2014 orders

Holding

Prayer 2 dismissed for unreasonable delay and failure to plead any ground for review

Reasoning

The court set out Section 80 of the Civil Procedure Act and Order 45 Rule 1, noting the three grounds for review and the requirement of no unreasonable delay. The order sought to be reviewed was made on 12th June 2014, nearly eight years before the application, with no explanation for the delay. Further, the applicant did not identify any limb of Order 45 Rule 1, neither citing new and important matter, mistake or error apparent on the face of the record, nor any other sufficient reason.

p. 2
02

Jurisdiction to cancel titles (prayers 3 and 4)

Holding

Struck out; the court is functus officio after delivery of judgment on 12th June 2014

Reasoning

Cancellation of title is a substantive relief neither sought nor granted in the 12th June 2014 ruling, which was in substance the judgment. Judgment having been delivered, the parties' claims were conclusively determined. The court invoked the functus officio doctrine as explained in Raila Odinga & Others v IEBC & Others, adopting Pretorius' formulation that an adjudicative decision, subject to appeal, is final and cannot be revoked or varied by the decision-maker.

p. 3
03

Competence of the judge to hear the review

Holding

The judge proceeded despite not being the judge who made the order, since Said J. Chitembwe J is no longer stationed at Kakamega and the matter was transferred

Reasoning

Ordinarily review is heard by the judge who made the order. However, that judge is no longer stationed at Kakamega and the matter had been transferred to the Environment and Land Court. In those circumstances the court considered and determined the application itself.

p. 2

Legal principles established

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  • Once judgment is delivered, the court becomes functus officio and lacks jurisdiction to grant fresh substantive reliefs not sought or granted in the judgment
  • A suit or application filed in a court devoid of jurisdiction is dead on arrival and cannot be remedied
  • An application for review must be brought without unreasonable delay and on one of the grounds in Order 45 Rule 1

Court orders

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  1. 1.Prayer 2 of Notice of Motion dated 6th October 2021 is dismissed
  2. 2.Prayers 3 and 4 of Notice of Motion dated 6th October 2021 are struck out
  3. 3.Each party shall bear own costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (2)

  • Raila Odinga & Others vs. IEBC & Others
    [2013] eKLR
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (application for review to the court which made the order)

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, "Republic v Chairman Land Disputes Tribunal Kakamega Municipality Ex Parte James Sakwa Mukolwe; Alfred N. Andati & 5 others (Interested Parties) [2021] KEELC 438 (KLR)", Case Analysis (2021). Not stated in the judgment (formerly a judicial review matter transferred from the High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/438/eng@2021-12-07

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