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ELCDismissedNot stated in judgment (ELC suit re Muguga/Gitaru/1042 Original No. Muguga/Gitaru/487/85)· [2024] KEELC 5806 (KLR)

Regeru v County Government of Kiambu & another (Environment & Land Case 1411 of 2016) [2024] KEELC 5806 (KLR)

Environment and Land Court
9 August 2024
5,822 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st Defendant/Applicant moved the court by notice of motion dated 20th February 2024, brought under Sections 3, 3A and 80 of the Civil Procedure Act and Orders 45 and 51 of the Civil Procedure Rules, seeking stay of execution, setting aside of the judgment of 5th March 2020 and the decree of 13th May 2020, leave to amend pleadings and introduce new evidence, and review of the judgment to reflect that the suit property (Muguga/Gitaru/1042, Original No. Muguga/Gitaru/487/85) was public land under Article 62(2), that the Plaintiff's title was fraudulently procured, and that the National Land Commission and 2nd Defendant were not served. The Plaintiff/Respondent opposed, contending the court was functus officio, the application was inordinately delayed, and the Applicant was in contempt. The court framed four issues. It held that a judgment rendered on merits after full participation of the parties cannot be set aside by the same or a court of coordinate jurisdiction; that the purported new evidence - the property's status, the alleged fraud, and alleged non-service on the 2nd Defendant - was either already determined in Nairobi HCC Petition No. 584 of 2012 (Majanja J) or discoverable with due diligence; that upon delivery of judgment and decree the court became functus officio, adopting Telkom Kenya Ltd v John Ochanda; and that the application, an attempt at a second bite at the cherry, amounted to abuse of the due process of the court. The motion was dismissed with costs to the Plaintiff/Respondent, certified at Kes.25,000/= only.

Key legal issues

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01

Jurisdiction to set aside a judgment rendered on merits

Holding

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

Reasoning

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.

p. 5
02

Review based on discovery of new and important evidence

Holding

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

Reasoning

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.

p. 7
03

Whether the court is functus officio

Holding

Yes; upon delivery of the judgment and decree the court was divested of jurisdiction to re-engage merit-based with the dispute

Reasoning

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.

p. 10
04

Abuse of the due process of the court

Holding

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

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.The application dated 20th February 2024 is dismissed with costs to the Plaintiff/Respondent
  2. 2.Costs certified in the sum of Kes.25,000/= only to avert the filing of a supplementary bill of costs

Authorities

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Legislation

  • Civil Procedure Act (Chapter 21, Laws of Kenya)Sections 3, 3A, 80, 1A, 1B
  • Civil Procedure Rules, 2010Order 45 Rules 1, 2 and 3; Order 51; Order 9 Rule 1
  • Constitution of KenyaArticle 62(2)
  • Environment and Land Court Act, 2011Section 3

Cases cited (17)

  • Republic v Public Procurement Administrative Review Board & 2 Others
    [2018] eKLR
  • Pancras T Swai v Kenya Breweries Ltd
    [2014] eKLR
  • Sada Mohammed v Charang Singhnand & Another
    [1959] EA 793
  • Republic v Advocates Disciplinary Tribunal Ex-parte Apollo Mboya
    [2019] eKLR
  • Telkom Kenya Ltd v John Ochanda [suing on his behalf and on behalf of 996 former employees of Telkom Kenya
    [2014] eKLR
  • Trust Bank Ltd v Shanzu Villas Ltd
    [2004] eKLR
  • Philip Keipto Chemwollo v Augustine Kubende & Another
    [1986] eKLR
  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Otieno, Ragot & Company Advocates v National Bank of Kenya Limited
    [2020] eKLR
  • Chandler Vs Alberta Association Of Architects
    [1989] 2 S.C.R. 848
  • In re St. Nazaire Co.
    (1879), 12 Ch. D. 88
  • Paper Machinery Ltd. vs. J.O. Rose Engineering Corp.
    [1934] S.C.R. 186
  • Raila Odinga v IEBC
  • Rutongot Farm Ltd v Kenya Forest Service & 3 others
    (Petition 2 of 2016) [2018] KESC 27 (KLR) (19 September 2018) (Ruling)
  • Kenya Section of the International Commission of Jurists v Attorney General & 2 Others
    Criminal Appeal No. 1 of 2012; [2012] eKLR
  • Nairobi HCC Petition No 584 of 2012 (judgment of Hon. Justice Majanja)
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

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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, "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.