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ELCDismissedBungoma ELC Case No. 106 of 2010 (Notice of Motion dated 29th December 2023)· [2024] KEELC 4120 (KLR)

Benjamin Barasa Wafula v Attorney General & 28 Others

Environment and Land Court
9 May 2024
2,850 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Bungoma Environment and Land Court dismissed a landowner's attempt to reopen its earlier ruling, confirming that dissatisfied parties must appeal, not ask the same judge to reconsider.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Bungoma (E.C. Cherono, J) on a notice of motion dated 29th December 2023 by the plaintiff, Benjamin Barasa Wafula, in a long-running land dispute originating as Bungoma High Court Civil Case No. 106 of 2010. The applicant sought some twelve prayers, including declarations that the court's ruling of 19th December 2023 was null and void, dismissal of an earlier application, a change of the case track from a civil suit to a constitutional petition, site-visit orders against improperly joined 'subsequent parties' (the 8th to 29th respondents including the President and Deputy President), a stay restraining alienation of land parcels in Ndivisi/Muchi, directions for viva voce hearing within 150 days, transfer and consolidation of Webuye ELC Case No. 33 of 2018, and reversion of previously awarded costs. The court held it was functus officio regarding the 19th December 2023 ruling, applying Mombasa Bricks & Tiles Ltd v Arvind Shah; found the 8th to 29th respondents and 'subsequent parties' were improperly joined through the backdoor contrary to Order 1 rule 10(4); held the demand to re-register the suit as a petition unorthodox; and declined to reconstruct poorly drafted pleadings, noting Article 159(2)(d) cannot save defective drafting. The application was found fundamentally flawed, lacking viability and untenable, and was dismissed with costs to the respondents on 9th May 2024.

Key legal issues

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01

Whether the court could declare its own ruling of 19th December 2023 null and void

Holding

The court declined; having fully determined the application the subject of that ruling, it became functus officio and the applicant's remedy was appeal

Reasoning

The court relied on the definition of functus officio in Black's Law Dictionary and on Mombasa Bricks & Tiles Ltd v Arvind Shah, which explains the doctrine as seeking finality in litigation, barring merit-based reopening before the same court, while permitting only consequent and facilitative processes. An aggrieved party must use appellate avenues rather than the 'unorthodox technique' adopted.

p. 5
02

Whether orders could issue against the 8th to 29th respondents and 'subsequent parties'

Holding

No; they were joined without leave, contrary to Order 1 rule 10(4), and orders against improperly joined parties cannot lie

Reasoning

The court found the cause of action against these respondents unclear, noted the law does not recognize 'subsequent parties', and held that adding parties without leave was un-procedural backdoor joinder. It also cautioned that joining judicial officers and state officers without averring wrongdoing embarrasses and brings into disrepute those offices and the administration of justice.

p. 6
03

Whether the case track should be changed to a constitutional petition

Holding

No; the suit was properly registered as Bungoma ELC Case No. 106 of 2010 and the demand for a change was unorthodox

Reasoning

The court traced the suit's history: commenced as Bungoma High Court Civil Case No. 106 of 2010, renumbered upon transfer to Kakamega, then returned to Bungoma retaining its original number. A petition is a completely different track of pleadings and the applicant could not demand re-registration mid-way.

p. 6
04

Whether the stay/injunction and other prayers could issue

Holding

No; the prayers were poorly drafted, unsubstantiated, or directed against improperly joined parties and could not be saved by Article 159(2)(d)

Reasoning

The court found the 'stay' prayer unclear as to what judicial proceedings were to be arrested, declined to reconstruct pleadings for a party, found no justification for the 150-day viva voce direction (a matter for Order 11 pre-trial directions already taken), and noted the consolidation prayer lacked supporting pleadings. Orders cannot issue in vain or in a vacuum.

p. 6

Legal principles established

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  • A court that has fully determined an application becomes functus officio regarding the issues raised therein and cannot revisit its own ruling; the aggrieved party must pursue appellate avenues
  • The functus officio doctrine seeks finality in litigation and bars merit-based reopening of a decided matter
  • Parties cannot be ushered into a suit through the backdoor; joinder must follow Order 1 rule 10(4) of the Civil Procedure Rules, and orders cannot issue against improperly joined parties
  • Poorly drafted pleadings and applications cannot be saved by Article 159(2)(d) of the Constitution or the oxygen principles

Court orders

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  1. 1.The application dated 29th December 2023 is dismissed with costs to the respondents.
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act Cap 21 and Article 159 of the Constitution of Kenya, 2010

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, "Benjamin Barasa Wafula v Attorney General & 28 Others", Case Analysis (2024). Bungoma ELC Case No. 106 of 2010 (Notice of Motion dated 29th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4120/eng@2024-05-09

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