Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment extract (original suit number not given)· [2021] KEELC 4781 (KLR)

Wamucii v Njenga & 2 others (Environment & Land Case 598 of 2010) [2021] KEELC 4781 (KLR)

Environment and Land Court
23 March 2021
1,946 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Plaintiff moved the court by notice of motion dated 11/11/2019 seeking review of the judgment delivered on 18/02/2019, in which her suit over land reference number Nairobi/Block 113/367 had succeeded. She sought cancellation of the charge and further charge on the suit property, or alternatively an order compelling the Land Registrar to register the property in her name. She argued that the 3rd Defendant had misled the court at hearing into believing the charge had been discharged, and that the 2nd Defendant failed to comply with a consent of 18/03/2019 recorded in a stay application, under which the discharge was to be registered and the original title held in advocates' joint custody pending appeal. The 1st and 2nd Defendants opposed, contending the original title was misplaced and the matter now belonged to the Court of Appeal in Civil Appeal No.140 of 2019. The 3rd Defendant cited inordinate delay and the court's functus officio status, and the 1st and 2nd Defendants filed a preliminary objection on jurisdiction. The court dismissed the preliminary objection, holding that its power to review its own judgment is provided under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. On the merits, however, it found the Plaintiff had not established sufficient reason for review: her grievance arose from breach of the consent, a matter for enforcement, and the case was pending appeal. Re-opening the status of the charge would offend the functus officio doctrine. The application was dismissed with each party bearing its own costs.

Key legal issues

#
01

Whether the court was functus officio and lacked jurisdiction to review its own judgment

Holding

The court retains power to review its own judgment under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, so the preliminary objection on jurisdiction failed; however, the review jurisdiction could not be exercised to re-open the case.

Reasoning

The court held that its power to review its own judgment is donated by Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, so it was not wholly deprived of jurisdiction as contended in the preliminary objection. That objection was therefore dismissed. The limits of the jurisdiction were instead addressed on the merits, since the grounds for review are strictly restricted and must be made without undue delay.

p. 3
02

Whether the Plaintiff demonstrated 'other sufficient reason' for review under Order 45 Rule 1

Holding

No sufficient reason was shown; the complaint amounted to the Defendants' breach of a consent, which was a matter for enforcement or appeal, not review.

Reasoning

The Plaintiff sought review almost a year after judgment, prompted only by the Defendants' failure to comply with the consent of 18/03/2019 recording stay terms. Her grievance was non-compliance with that consent while the appeal was pending before the Court of Appeal. Reviewing the judgment to determine the status of the charge at hearing would amount to re-opening the case, barred by functus officio. The proper course was enforcement of the consent, not review.

p. 4

Legal principles established

#
  • A court that has pronounced judgment cannot invoke its review jurisdiction to re-open the case; review is barred by the functus officio doctrine where the relief sought would require re-opening the matter already pending on appeal.

Court orders

#
  1. 1.The preliminary objection dated 17/07/2020 is dismissed
  2. 2.The application dated 11/11/2019 is dismissed
  3. 3.Each party will bear its own costs

Authorities

#

Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 (including Order 45 Rule 1)
  • Civil Procedure RulesOrder 51 Rule 14(3)

Cases cited (1)

  • Raila Odinga & 2 Others V Independent Electoral & Boundaries Commission & 3 Others
    [2013] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wamucii v Njenga & 2 others (Environment & Land Case 598 of 2010) [2021] KEELC 4781 (KLR)", Case Analysis (2021). Not stated in the judgment extract (original suit number not given). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4781/eng@2021-03-23

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