Lwande & 66 others v Registered Trustees of Telposta Pension Scheme (Environment and Land Case Civil Suit 1321 of 2013) [2024] KEELC 6878 (KLR)
The bottom line
#A Kenyan court dismissed a late bid to reopen a lost land case, confirming you cannot appeal a judgment and ask the same court to review it at the same time.
What this practically means
#Executive summary
#Key legal issues
#Functus officio
The Court is not functus officio in respect of incidental applications such as review, setting aside and change of advocate
Relying on Raila Odinga v IEBC and Silvanus Kizito v Edith Nkirote Mwiti, the Court held that although the doctrine expresses the principle of finality, it carries exceptions; a trial court retains jurisdiction to handle incidental proceedings including settlement of decrees, stay, review, setting aside and execution.
Leave for incoming advocate after judgment
Refused because the Order 9 Rule 9 threshold was not met - no consent from outgoing advocates and no service on Letangule & Co Advocates
At judgment the Applicant was represented by Letangule & Co Advocates. Order 9 Rule 9 requires either an application with notice to all parties or a consent between the outgoing and incoming advocates. Neither was demonstrated, and the rule is mandatory, protecting advocates from mischievous clients.
Re-opening the case and recalling the Applicant
Refused; the suit had been dismissed and no basis for setting aside the judgment under Orders 10 or 12 existed
Re-opening is an exercise of inherent and discretionary jurisdiction governed by the principles in Susan Wavinya Mutavi v Isaac Njoroge. The Applicant was one of 67 plaintiffs whose case was presented through PW1 and PW2; her choice not to testify was an internal matter and does not warrant setting aside the judgment.
Review of orders on costs
Refused; review unavailable to a party who has appealed, and the application was inordinately late and disclosed no review ground
Sections 80 and Order 45 confine review to discovery of new and important matter, error apparent on the face of the record or other sufficient reason, and only for a party not appealing. The Applicant had filed Civil Appeal E420 of 2022 against the entire judgment. The Motion was filed about 1 year 5 months after judgment without explanation.
Legal principles established
#- A court does not become functus officio merely because it has delivered a final decision; it retains jurisdiction over incidental matters such as stay, review and execution
- Post-judgment change of advocate can only be effected through the mandatory procedure in Order 9 Rule 9 - by court order on notice, or by consent
- A party cannot concurrently pursue an appeal and an application for review of the same decision
- Omnibus applications combining prayers governed by different rules that cannot co-exist are disfavoured and may be dismissed
Court orders
#- 1.The Motion dated 20th March 2024 is dismissed in its entirety with costs to the Defendant
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Section 146 of the Evidence Act; Orders 18 Rule 10, 22 Rule 22, 42 Rule 6, 45 Rule 1, 12 Rule 7 and 32(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lwande & 66 others v Registered Trustees of Telposta Pension Scheme (Environment and Land Case Civil Suit 1321 of 2013) [2024] KEELC 6878 (KLR)", Case Analysis (2024). ELC Suit (Motion dated 20th March 2024) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6878/eng@2024-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.