Regeru v County Government of Kiambu & another (Environment & Land Case 1411 of 2016) [2024] KEELC 5806 (KLR)
The bottom line
#The Environment and Land Court dismissed an attempt to reopen a 2020 land judgment, confirming courts cannot set aside their own final decisions on merits.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to set aside a judgment rendered on merits
The court has jurisdiction to set aside only default judgments (default of appearance or attendance), not judgments delivered after hearing and participation of the parties
The court distinguished default judgments, where setting aside is discretionary on reasons and the interests of justice, from judgments on merits. Here the 1st Defendant entered appearance, cross-examined the Plaintiff's witness, elected not to call witnesses and closed its case; the resulting merits judgment is impeachable only by review or appeal. The application seeking setting aside was therefore misconceived and the court divested of jurisdiction.
Review based on discovery of new and important evidence
Threshold not met; the purported new evidence (public-land status, fraudulent title, non-service on the 2nd Defendant) was available in the public domain or already litigated and determined
The status of the suit property and the legality of the title had been determined in Nairobi HCC Petition No. 584 of 2012 by Majanja J and in a subsequent ruling by Mumbi Ngugi J, which were never appealed. The 2nd Defendant was in fact served and filed a defence through an advocate. Review requires proof that evidence could not be produced earlier despite due diligence; the Applicant failed that test and approached the court with unclean hands.
Whether the court is functus officio
Yes; upon delivery of the judgment and decree the court was divested of jurisdiction to re-engage merit-based with the dispute
Adopting Telkom Kenya Ltd v John Ochanda, the court held that the functus officio doctrine bars merit-based decisional re-engagement after final judgment and decree. Having heard the parties on 20th February 2020 and rendered a merits judgment, the court could not reopen the matter, allow amendments or order a hearing de novo; an aggrieved party's remedy is appeal, not a return to the same court for a second bite at the cherry.
Abuse of the due process of the court
The application was an abuse of process, being an attempt to obtain a second bite at the cherry and to have the court sit on appeal over a coordinate court's decision
The same counsel who participated in the hearing, cross-examined the Plaintiff's witness, closed the defence without calling witnesses, and had liberty to file documents as early as 19th February 2019, now sought to set aside the merits judgment and relitigate. Guided by the Supreme Court's exposition in Rutongot Farm Ltd v Kenya Forest Service, the court held such conduct falls within the parameters of abuse of process and should be frowned upon.
Legal principles established
#- A judgment rendered on merits after hearing the parties cannot be set aside by the same or a court of coordinate jurisdiction; it may only be reviewed on lawful grounds or appealed
- Upon delivery of a final judgment and decree, a court becomes functus officio and cannot re-engage on the merits
- Discovery of new and important evidence as a ground for review requires strict proof that the evidence could not with due diligence have been obtained and produced earlier
- An application calculated to invite a court to sit on appeal over a decision of a court of coordinate jurisdiction amounts to abuse of the due process of the court
Court orders
#- 1.The application dated 20th February 2024 is dismissed with costs to the Plaintiff/Respondent
- 2.Costs certified in the sum of Kes.25,000/= only to avert the filing of a supplementary bill of costs
- Jurisdiction invoked
- Sections 3, 3A and 80 of the Civil Procedure Act; Orders 45 Rule 2 and 3 and Order 51 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Regeru v County Government of Kiambu & another (Environment & Land Case 1411 of 2016) [2024] KEELC 5806 (KLR)", Case Analysis (2024). Not stated in judgment (ELC suit re Muguga/Gitaru/1042 Original No. Muguga/Gitaru/487/85). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5806/eng@2024-08-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.