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ELCDismissedKakamega ELC Case (as stated in judgment; number not reproduced)· [2021] KEELC 1022 (KLR)

Peter Makongo Amwayi v Isaac Sivitari;Beatrice Ngesa (Interested Party) [2021] KEELC 1022 (KLR)

Environment and Land Court
16 November 2021
DOD. O. Ohungo
1,422 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 court cannot grant new orders after delivering final judgment, and appeal extensions belong to the Court of Appeal, so both applications failed.

What this practically means

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Executive summary

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This ruling by D. O. Ohungo, Judge, Environment and Land Court at Kakamega, determines two competing notices of motion arising after judgment delivered on 17th December 2019 dismissing the plaintiff's land claim with costs. By Motion dated 11th March 2021 the defendant sought an order compelling the plaintiff to vacate and remove structures erected on L.R. No. Isukha/Lubao/1112, alleging a violation of the judgment. The plaintiff opposed, arguing the court was functus officio, that no counterclaim had been filed and that the judgment awarded nothing to the defendant. By Motion dated 3rd May 2021, founded on Section 7 of the Appellate Jurisdiction Act, the plaintiff sought extension of time to file a Memorandum and Record of Appeal and to have his request for certified proceedings deemed filed. The defendant objected that the delay of over a year was inordinate and indolent. The court framed two issues: whether it was functus officio as to the first application, and whether it had jurisdiction over the second. Relying on the doctrine of finality as explained by the Supreme Court in Raila Odinga v IEBC and the jurisdictional principles in the Lillian S and Samuel Kamau Macharia cases, the court held it was functus officio as to the eviction prayers, no counterclaim having been pleaded and no eviction order having been made at trial. It further held that extension of time for filing a Memorandum and Record of Appeal is a matter for the Court of Appeal alone, such an application being dead on arrival before this court. Both applications were struck out, with each party to bear its own costs.

Key legal issues

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01

Whether the court is functus officio regarding the defendant's eviction application

Holding

The court is functus officio; the defendant's application is an attempt to obtain relief never sought or granted at trial

Reasoning

Judgment was delivered on 17th December 2019 dismissing the plaintiff's case. The defendant and interested party filed no counterclaim and the court made no order for eviction or removal of structures. The parties' claims as pleaded were fully determined, so the court lacks jurisdiction to grant the eviction orders now sought.

p. 2
02

Whether the High Court can extend time for filing a Memorandum and Record of Appeal

Holding

It cannot; that jurisdiction lies with the Court of Appeal

Reasoning

Section 7 of the Appellate Jurisdiction Act empowers extension of time for giving notice of intention to appeal or seeking leave, not for filing the Memorandum and Record of Appeal, which are Court of Appeal documents. The plaintiff had already timeously filed and served a Notice of Appeal, so the relief sought lies elsewhere.

p. 2

Legal principles established

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  • Once a court delivers final judgment it is functus officio and cannot revoke or vary its decision except through the appeal process
  • A suit or application filed in a court without jurisdiction is incurably defective and cannot be remedied

Court orders

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  1. 1.Notice of Motion dated 11th March 2021 is struck out
  2. 2.Notice of Motion dated 3rd May 2021 is struck out
  3. 3.Each party shall bear own costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7

Cases cited (4)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • 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 7 of the Appellate Jurisdiction Act (as invoked for the extension-of-time application); inherent jurisdiction over its own process for the functus officio application

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, "Peter Makongo Amwayi v Isaac Sivitari;Beatrice Ngesa (Interested Party) [2021] KEELC 1022 (KLR)", Case Analysis (2021). Kakamega ELC Case (as stated in judgment; number not reproduced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1022/eng@2021-11-16

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