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ELCDismissedNot stated in the judgment (application by Notice of Motion dated 30th August 2023)· [2024] KEELC 1001 (KLR)

Matingwony (Suing as the Administratrix of the Estate of the Late Kimalel Matingwony (Deceased) v Rop & 5 others (Environment & Land Case 24 of 2007) [2024] KEELC 1001 (KLR)

Environment and Land Court
29 February 2024
2,137 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Once a Kenyan court delivers final judgment, it cannot reopen the case years later—the judge dismissed this late review application with costs.

What this practically means

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Executive summary

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The 1st Defendant/Applicant moved the court by Notice of Motion dated 30th August 2023 under Sections 1A, 1B, 3, 3A and 79G of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules 2010 and Article 50(1) of the Constitution, seeking review of the court's order of 6th July 2016 and an order that the Plaintiff/Respondent, Lucio Matingwony, pay him damages of Kshs. 20,000/= per month. He deponed that the order had directed the Plaintiff to continue plucking tea on 3 acres of the suit land, Kericho/Kabianga/2407, on an undertaking to pay damages monthly, which she refused to honour, and that she had since evicted him from the land. The Plaintiff/Respondent and the 4th and 5th Defendants opposed, contending that the order was an interim, conditional one issued pending hearing of the suit; that the suit was heard and judgment delivered on 14th September 2018 in the Plaintiff's favour, dismissing the Applicant's counterclaim and rectifying the register; that the Applicant's Notice of Appeal had been struck out; and that the court was therefore functus officio. The court traced the doctrine of functus officio through the Supreme Court's decision in Raila Odinga v IEBC, Jersey Evening Post Ltd v Al Thani and the Court of Appeal in Telkom Kenya Ltd v John Ochanda, noting the Section 99 Civil Procedure Act exception for clerical errors. It found that the interim order had been disposed of by the final judgment, that no appeal was pending, and that a court cannot be approached through an application without a substantive suit. The application dated 30th August 2023 was dismissed with costs. Delivered at Kericho on 29th February 2024 by M.C. Oundo, Environment & Land Judge.

Key legal issues

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01

Whether the court, having delivered final judgment and decree, was functus officio and incapable of reviewing its earlier interim order

Holding

The court held that it was functus officio; the interim order of 6th July 2016 was spent upon the judgment of 14th September 2018, no appeal was pending (the Notice of Appeal having been struck out), and the application had no substantive suit to anchor on

Reasoning

Relying on the Supreme Court's exposition of the doctrine in Raila Odinga v IEBC and the Court of Appeal in Telkom Kenya Ltd v John Ochanda, the court reasoned that the doctrine gives expression to the principle of finality: once a decision is given it is final and conclusive, and the court may not engage in merit-based re-engagement after judgment and decree. The interim order had been effectively disposed of by the final judgment in the Plaintiff's favour, and the conditional undertaking to pay damages never crystallised because the Applicant's counterclaim was dismissed.

p. 5
02

Whether the Applicant met the threshold for review under Order 45 of the Civil Procedure Rules

Holding

Even assuming the order existed, no review ground under Order 45(1)(a) and (b) was established - no additional evidence or error was demonstrated

Reasoning

The Respondent submitted, relying on Order 45(1)(a) and (b), that the Applicant had neither proved discovery of additional evidence nor shown any error on the face of the order to warrant review. The purported order was conditional - enforceable only if the Applicant succeeded in his counterclaim - and since judgment was entered in the Plaintiff's favour, the condition failed and the order was rendered superfluous.

p. 3

Legal principles established

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  • Once final judgment has been entered and a decree issued, the doctrine of functus officio prevents the court from revisiting the matter on a merit-based re-engagement
  • A court cannot be approached through an application without a substantive suit, and a substantive suit cannot be filed for the purpose of seeking review of an order from another suit
  • An interim order pending hearing and determination of a suit is disposed of by the judgment delivered in that suit

Court orders

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  1. 1.The application dated 30th August 2023 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 99
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 45(1)(a) and (b)
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (4)

  • Evans Otieno Nyakwana v Cleophas Bwana Ongaro
    [2015] eKLR
  • Odinga v. Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) / Raila Odinga & Others v. IEBC & Others
    [2013] eKLR
  • Jersey Evening Post Limited v Al Thani
    [2002] JLR 542 at 550
  • Telkom Kenya Limited v. John Ochanda
    [2014] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 79G of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules 2010; Article 50(1) of the Constitution of Kenya

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, "Matingwony (Suing as the Administratrix of the Estate of the Late Kimalel Matingwony (Deceased) v Rop & 5 others (Environment & Land Case 24 of 2007) [2024] KEELC 1001 (KLR)", Case Analysis (2024). Not stated in the judgment (application by Notice of Motion dated 30th August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1001/eng@2024-02-29

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