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ELCAllowedELC Appeal No. 22 of 2019 (Formerly Kajiado HCC Appeal No. 27 of 2019)· [2021] KEELC 2404 (KLR)

Rhobi Chacha v Justus Momanyi [2021] KEELC 2404 (KLR)

Environment and Land Court
27 July 2021
COChristine Ochieng
2,231 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 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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This was a first appeal to the Environment and Land Court at Kajiado against a Ruling of Hon. Margaret Kasera delivered on 10th July 2019 in Kajiado SRMCC No. 27 of 2004, by which the trial magistrate allowed the Respondent's Notice of Motion dated 27th February 2019, granting injunctions restraining the Appellant from continuing construction on plot 496/Res Noonkopir Trading Centre and declaring the Respondent the rightful owner. The dispute had its genesis in the Respondent's 2004 suit, which was dismissed by Hon. S. O Temu on 14th February 2012 on the footing that the claim was misdirected and ownership should be determined by the County Council of Ol Kejuado upon presentation of the parties' allotment letters. The Appellant argued, relying on functus officio and res judicata principles, that the trial magistrate had no jurisdiction to revisit the dismissed suit or to revive the Surveyor's Report of 4th March 2012, which had already been rejected in a 2015 ruling declining review. The Respondent supported the ruling, contending it declared his ownership and granted an injunction. Holding the appeal merited, Christine Ochieng J found the trial magistrate erred in disregarding the 2012 dismissal, selectively applying its contents, ignoring uncontroverted evidence of the Appellant's Kshs. 5,000,000 development investment, and granting an injunction where no suit was pending; the court was functus officio. The court set aside the ruling, directed the parties to implement Hon. Temu's judgment, and ordered each party to bear their own costs, attributing the confusion to the County Government of Kajiado.

Key legal issues

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01

Functus officio and res judicata - whether the trial magistrate could revisit matters determined in the 2012 judgment dismissing the suit

Holding

The trial magistrate erred in upholding the 2012 Surveyor's Report and determining ownership when the suit had been dismissed; the court was functus officio.

Reasoning

The 14th February 2012 judgment by Hon. Temu dismissed the Respondent's suit and directed parties to present their allotment letters to the County Council. A prior ruling on an application dated 23rd June 2015 had already dealt with, and declined to act on, the Surveyor's Report of 4th March 2012. Hon. Kasera disregarded that ruling, selectively applied the 2012 judgment, and purported to determine ownership already disposed of, exceeding the court's jurisdiction.

p. 3
02

Whether there was a competent suit to anchor an injunction

Holding

No injunction could issue because the lower court suit had been dismissed and no suit was pending.

Reasoning

The Respondent's suit had been dismissed by the 14th February 2012 judgment. An injunction is an ancillary remedy in aid of a pending suit; with no suit on foot, the prayers for interim and injunctive relief in the Notice of Motion dated 27th February 2019 had no foundation in law, and the trial magistrate erred in granting them.

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03

Whether the trial magistrate erred by disregarding uncontroverted evidence in the Appellant's Replying Affidavit

Holding

The trial magistrate erred in law and fact by failing to appreciate the weight of the Appellant's uncontroverted evidence of development investment.

Reasoning

The Appellant annexed a Letter of Allotment dated 5th September 2018 showing her plot formerly Noonkopir 360/Business is now No. B423, plus approval of development, and deponed that her plot was validated between 2017 and 2018 and that she had spent Kshs. 5,000,000 developing it. These averments were not controverted by the Respondent, yet the trial magistrate ignored them and the irreparable harm they evidenced.

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Legal principles established

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  • Once a court has heard and dismissed a suit and given its directions, it becomes functus officio and cannot revisit matters determined in that judgment.
  • An order of injunction cannot be granted in a suit that has already been dismissed, as there is no pending suit to anchor such relief.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The Ruling delivered on 10th July, 2019 in Kajiado SRMCC No. 27 of 2004 is set aside
  3. 3.The parties are directed to proceed to adhere to the judgment of Hon. Temu by jointly presenting their respective letters of allotment to the County Council of Ol Kejuado
  4. 4.Each party to bear their own costs

Authorities

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Cases cited (5)

  • Chembe Katana Changi Vs Ministry of Lands & Settlement & 4 others
    (2014) eKLR
  • Telkom Kenya Limited Vs John Ochanda
    (2014) eKLR
  • Henderson V Henderson
    (1843) 67 ER 313
  • Njangu V Wambugu & Another
    Nairobi HCCC No. 2340 of 1999
  • Jared Oduor & 2 others V Director of Public Prosecutions & 4 Others
    (2019) eKLR
On appeal from
Chief Magistrate's Court at Kajiado
Kajiado SRMCC No. 27 of 2004
Jurisdiction invoked
First appellate jurisdiction over appeals from subordinate courts transferred to the Environment and Land Court (appeal formerly filed in the High Court at Kajiado and transferred to ELC)

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, "Rhobi Chacha v Justus Momanyi [2021] KEELC 2404 (KLR)", Case Analysis (2021). ELC Appeal No. 22 of 2019 (Formerly Kajiado HCC Appeal No. 27 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2404/eng@2021-07-27

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