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ELCDismissedApplication dated 29th July 2021 (in ELC Suit; Plaint dated 13th March 2013)· [2022] KEELC 1434 (KLR)

Albert Fred Ekirapa & Nyongesa Sirari & 4 others [2022] KEELC 1434 (KLR)

Environment and Land Court
16 February 2022
AOA. Omollo
1,036 words in judgment
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The bottom line

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The Environment and Land Court in Busia dismissed an attempt to cancel a land title because final judgments cannot be reopened in Kenya.

What this practically means

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Executive summary

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The applicant, Albert Fred Ekirapa, moved the Environment and Land Court at Busia by a notice of motion dated 29th July 2021, brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, seeking nullification of the transfer and cancellation of the title to Land Parcel Number NORTH TESO/ANGURAI/213 and its reversion to Rosela Akisa Odama, the original owner from whom he claimed to have purchased the land, together with costs. He supported the application with his affidavit and later submissions, invoking section 3(2) of the Law of Contract Act on the validity of the sale agreement and alleging fraud in the entries to the land register, citing Munyu Maina v Hiram Gathiha Maina. The respondents did not file replying affidavits or submissions. The court noted that the substance of the relief sought had been the subject of the plaintiff's plaint dated 13th March 2013, which was heard to completion and determined in a judgment delivered on 28th May 2015; the plaintiff's appeal to the Court of Appeal was dismissed on 28th September 2017, upholding the trial court's orders. Holding that the application was an attempt to reopen a concluded matter, the court applied the functus officio doctrine as articulated in Telkom Kenya Ltd v John Ochanda and Raila Odinga v IEBC, and found its hands tied absent a foothold in the exceptions under section 99 of the Civil Procedure Act. The application was dismissed with no order on costs on 16th February 2022.

Key legal issues

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01

Whether the court retains jurisdiction to grant orders that have already been determined in a concluded suit upheld on appeal

Holding

The application was an attempt to reopen a decided case; the court is functus officio and the application did not fall within the section 99 Civil Procedure Act exceptions

Reasoning

The plaintiff's suit was heard to completion and judgment delivered on 28th May 2015; his appeal was dismissed by the Court of Appeal on 28th September 2017. The doctrine of functus officio, as explained in Telkom Kenya Ltd v John Ochanda and Raila Odinga v IEBC, bars the decision-maker from revisiting a final decision. The court could only act if the application fell within the statutory exceptions, and it did not.

p. 2

Legal principles established

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  • A court that has rendered a final decision is functus officio and cannot reopen the matter, save within the exceptions provided under section 99 of the Civil Procedure Act

Court orders

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  1. 1.The application dated 29th July 2021 is dismissed
  2. 2.No order on costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 99
  • Civil Procedure RulesOrder 51
  • Law of Contract ActSection 3(2)

Cases cited (3)

  • Munyu Maina vs. Hiram Gathiha Maina
    (2013) eKLR
  • Telkom Kenya limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited)
    [2014] eKLR
  • Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others
    [2013] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules

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, "Albert Fred Ekirapa & Nyongesa Sirari & 4 others [2022] KEELC 1434 (KLR)", Case Analysis (2022). Application dated 29th July 2021 (in ELC Suit; Plaint dated 13th March 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1434/eng@2022-02-16

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