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ELCDismissedNot stated in the extract provided· [2024] KEELC 6977 (KLR)

Kiarie v Karai farmers Co-operative Society Limited & another (Environment & Land Case 81 of 2019) [2024] KEELC 6977 (KLR)

Environment and Land Court
16 October 2024
AOAntony O. Ombwayo
1,056 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to revive a land suit it had already declared abated, holding that once it delivers a final ruling it cannot revisit the matter—the only options are appeal or review.

What this practically means

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Executive summary

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The Plaintiff/Applicant, Leah Nyambura Kiarie, applied by notice of motion dated 20th March 2024 for an order reviving her suit, which had abated against the 2nd Defendant and been struck out against the 1st Defendant pursuant to a ruling of 7th March 2024 on the Respondent's application dated 9th January 2024. She explained that she learned of the 2nd Defendant's death only when a third party sued the alleged owner of the suit properties in Naivasha CM ELC E070 of 2022, argued that the cause of action survived death under Order 24 Rule 1 of the Civil Procedure Rules, and invoked Sections 1A and 1B of the Civil Procedure Act, urging that the suit, valued at over 30 million shillings, be revived to be heard on merit. The Respondent opposed, contending that the Applicant had been served and had participated in the proceedings leading to the abatement ruling, and that her remedy lay in appeal or review. The court framed a single issue: whether the application was merited. It found it undisputed that the Applicant had been served and had participated in the earlier proceedings, and held that by the ruling of 7th March 2024 the court had attained finality and became functus officio, applying Telkom Kenya Ltd v John Ochanda, Raila Odinga v IEBC, and Jersey Evening Post Ltd v Al Thani. Determining the fresh application would amount to the court sitting in its own appeal. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the court could entertain an application to revive a suit already declared abated and struck out in a prior ruling

Holding

The application was not competent; the court was functus officio after its ruling of 7th March 2024, and the Applicant's remedy was appeal or review.

Reasoning

The court found it undisputed that on 7th March 2024 it had ruled that the suit abated against the 2nd Defendant and struck out the suit against the 1st Defendant, after the Applicant had been served and participated. Relying on the functus officio doctrine as articulated in Telkom Kenya Ltd v John Ochanda and Jersey Evening Post Ltd v Al Thani, the court held that finality had attached to that decision, and that determining the new application would amount to the court sitting in its own appeal.

p. 2

Legal principles established

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  • A court becomes functus officio once it has rendered its ruling on a matter; any challenge must be by appeal or review, not a fresh application to the same court.

Court orders

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  1. 1.The application dated 20th March, 2024 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 24 Rule 1

Cases cited (3)

  • Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited)
    [2014] KECA 600 (KLR)
  • Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others
    [2013] eKLR
  • Jersey Evening Post Ltd v Al Thani
    [2002] JLR 542
Jurisdiction invoked
Original civil jurisdiction under the Environment and Land Court Act; application under Order 24 of the Civil Procedure Rules to revive an abated suit

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, "Kiarie v Karai farmers Co-operative Society Limited & another (Environment & Land Case 81 of 2019) [2024] KEELC 6977 (KLR)", Case Analysis (2024). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6977/eng@2024-10-16

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