Republic v Chairman Land Disputes Tribunal Kakamega Municipality Ex Parte James Sakwa Mukolwe; Alfred N. Andati & 5 others (Interested Parties) [2021] KEELC 438 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Review of the 2014 orders
Prayer 2 dismissed for unreasonable delay and failure to plead any ground for review
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.
Jurisdiction to cancel titles (prayers 3 and 4)
Struck out; the court is functus officio after delivery of judgment on 12th June 2014
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.
Competence of the judge to hear the review
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
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.
Legal principles established
#- 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
#- 1.Prayer 2 of Notice of Motion dated 6th October 2021 is dismissed
- 2.Prayers 3 and 4 of Notice of Motion dated 6th October 2021 are struck out
- 3.Each party shall bear own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.