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ELCDismissedELC Case (Murang'a) - Notice of Motion dated 18th February 2022 arising from suit over LOC.6/Gikarangu/3634· [2022] KEELC 2915 (KLR)

Muchoki & another v Muchoki & 3 others (Environment & Land Case 371 of 2017) [2022] KEELC 2915 (KLR)

Environment and Land Court
23 June 2022
5,954 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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The court refused to reopen a decided land case, confirming that once a judgment is final, parties must use an appeal or formal review, not fresh applications.

What this practically means

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Executive summary

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By a Notice of Motion dated 18th February 2022, the 1st Defendant, John Karanja Muchoki, sought leave for the firm of Wangui Gachango and Associates to come on record after judgment, re-opening of the file, a re-subdivision of land parcel LOC.6/Gikarangu/3634 by the Murang'a County Survey Office, and police security during that exercise, contending the initial subdivision executed under the judgment of 14th January 2021 destroyed his rental houses and trees. The Plaintiffs/Respondents opposed through a Replying Affidavit and a Notice of Objection dated 28th April 2022 against the Applicant's Further Affidavit, arguing the matter was res judicata, sub judice Nyeri Civil Appeal E028 of 2021, and that the court was functus officio. The court, L. Gacheru J, first dismissed the objection, holding the Applicant had leave under the directions of 21st February 2022, filed within reasonable time, and that submissions are not pleadings. On the main application, the court held the prayer for change of advocates failed for breach of the mandatory Order 9 Rules 5 and 9, the Notice of Change having been filed without leave and unserved. The substantive prayer was res judicata the judgment of 14th January 2021, sub judice the pending appeal, and in any event an impermissible attempt to review the judgment without invoking Order 45. The application was dismissed entirely with costs to the Plaintiffs/Respondents.

Key legal issues

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01

Whether the Further Affidavit filed on 20th April 2022 should be struck out for want of leave and for being filed after submissions

Holding

The notice of objection is dismissed; the Applicant had leave under the directions of 21st February 2022, filed within reasonable time, and submissions are not pleadings

Reasoning

The court's directions of 21st February 2022 expressly granted the Applicant corresponding leave to file a supplementary affidavit. The directions set no timeline, so reasonable time applied, a flexible concept judicially assessed on the facts. Further, submissions merely collate pleadings and evidence; filing evidence after submissions occasions no prejudice, and the Respondents voluntarily filed their submissions before the further affidavit. The affidavit was in strict compliance with directions and properly on record.

p. 5
02

Whether the Law Firm of Wangui Gachango and Associates could come on record after judgment

Holding

Rejected - the requirements of Order 9 Rules 5 and 9 were breached: the Notice of Change was filed without leave and not served on the outgoing firm

Reasoning

After judgment, a change of advocate requires a court order on application with notice to all parties or consent. Here the incoming firm filed a Notice of Change concurrently with, and before obtaining, leave, and never served the former firm of Christopher & Gachango, which remained advocate on record until a duly filed and served notice of change. The rule is mandatory, protects advocates from mischievous clients, and imposes orderliness on civil proceedings rather than impeding the right to counsel.

p. 7
03

Whether the application to re-open the file and order a re-subdivision is res judicata

Holding

Yes - it is res judicata the judgment of 14th January 2021, which conclusively determined the parties' shares and the subdivision, and the court is functus officio

Reasoning

The parties and subject matter of the application are identical to those determined in the final judgment of 14th January 2021, satisfying Section 7 of the Civil Procedure Act and the conjunctive ingredients of res judicata. After final judgment the court is functus officio; entertaining the application would amount to sitting on appeal over its own judgment. The proper remedy was an application for review under Order 45, which the Applicant did not pursue.

p. 10
04

Whether the application is sub judice the pending appeal

Holding

Yes - the application is sub judice Nyeri Civil Appeal E028 of 2021, in which the Applicant's stay application was dismissed on 4th February 2022

Reasoning

Section 6 of the Civil Procedure Act bars proceedings where the matter in issue is directly and substantially in issue in a previously instituted proceeding between the same parties pending before a court of competent jurisdiction. The Applicant, aggrieved by the judgment, filed the appeal and only moved this court after the Court of Appeal dismissed his stay application, suggesting forum shopping. The re-subdivision sought would directly implicate the subject of the pending appeal.

p. 11
05

Whether the court could otherwise re-open the file to amend its orders

Holding

No - the law permits re-opening only through an application for review under Order 45 of the Civil Procedure Rules

Reasoning

Even setting aside res judicata and sub judice, no statutory pathway exists for re-opening a concluded file to amend or edit orders except review under Order 45. The Applicant's application was in substance a review attempt made without invoking the substantive law, and would in any event have been dismissed for that procedural defect alone.

p. 11

Legal principles established

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  • Striking out of pleadings is a drastic remedy to be exercised sparingly and only in the clearest of cases
  • Submissions are not pleadings and a further affidavit filed after submissions does not occasion prejudice justifying striking out
  • Order 9 Rule 9 procedure for change of advocates after judgment is mandatory and must be complied with before the incoming firm acts
  • A court becomes functus officio after delivering final judgment and cannot re-open its own judgment except through review under Order 45

Court orders

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  1. 1.The Notice of Objection dated 28th April 2022 is dismissed
  2. 2.The Further Affidavit of the Applicant sworn 11th April 2022 is declared properly on record
  3. 3.The Notice of Motion Application dated 18th February 2022 is dismissed entirely with costs to the Plaintiffs/Respondents

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15
  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Civil Procedure Rules, 2010Order 9 Rule 5
  • Civil Procedure Rules, 2010Order 9 Rules 12 and 13
  • Civil Procedure Rules, 2010Order 45
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 6
  • Constitution of Kenya, 2010Article 50(2)(b)
  • Interpretation and General Provisions ActSection 58 (Cap 2 Laws of Kenya)

Cases cited (13)

  • Stephen Murithi M'Magiri v William Mwiti Magiri & another
    [2021] eKLR
  • Kivanga Estates Limited v National Bank of Kenya Limited
    [2017] eKLR
  • Jagdish Sonigra V Medical Practioners & Dentists Board & 2 Others
    [2008] eKLR
  • Kazungu Kasiwa Mkunzo V Rep
    C AP 239/04
  • Republic v Attorney General & another, Baps International Limited (Interested Party) Ex parte
    [2020] eKLR
  • Law Society of Kenya v Attorney General & 2 others
    [2016] eKLR
  • S. K. Tarwadi vs Veronica Muehlmann
    [2019] eKLR
  • Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi
    [2012] eKLR
  • Monica Moraa vs Kenindia Assurance Co. Ltd.
    [2010] eKLR
  • John Florence Maritime Services Limited & Another V Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Karia & Another v the Attorney General & others
    [2005] 1 EA 83
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    Nairobi CA Civil Appeal No. 105 of 2017 [2017] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested parties)
    [2020] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit over land parcel LOC.6/Gikarangu/3634); application decided inter partes under the Civil Procedure Act and 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, "Muchoki & another v Muchoki & 3 others (Environment & Land Case 371 of 2017) [2022] KEELC 2915 (KLR)", Case Analysis (2022). ELC Case (Murang'a) - Notice of Motion dated 18th February 2022 arising from suit over LOC.6/Gikarangu/3634. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2915/eng@2022-06-23

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