Mwachihi v Kamunya & 9 others (Environment & Land Case 5 of 2018) [2024] KEELC 7126 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 20th January 2022 ought to be reviewed
The application for review fails; there is no error apparent on the face of the record, no new and important matter, and the application was brought with unreasonable delay.
Order 45 Rule 1(b) and section 80 of the Civil Procedure Act permit review only on discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, without unreasonable delay. The court found the 2nd Defendant had been represented during trial, the court was aware of the sale agreements, payment conditions for reopening were not honoured, and the application was filed over two years after judgment.
Whether the court is functus officio
Yes, having delivered final judgment the court is functus officio and cannot re-engage with the dispute on the merits.
Relying on the functus officio doctrine as articulated in Telkom Kenya Ltd v John Ochanda and Raila Odinga v IEBC, and noting the section 99 exception for clerical mistakes, the court held that final judgment had been entered and its functions fully accomplished; the applicants' remedy was an appeal, not a merit-based re-engagement.
Whether the ancillary applications (recusal, striking out, subdivision, stay of execution) could survive
All ancillary applications fail with the review application.
Since the court found it functus officio and rejected the review, the invitations to amend the defence, order subdivision of the suit property, procure the recusal of the Plaintiff's advocates and stay execution could not stand, and all three applications were dismissed with costs.
Legal principles established
#- Once a court delivers final judgment it becomes functus officio and cannot revisit the matter on a merit-based re-engagement, save for exceptions such as correction of clerical errors under section 99 of the Civil Procedure Act
- A review may only be granted on the grounds of discovery of new and important matter, an error apparent on the face of the record, or any other sufficient reason, and without unreasonable delay
Court orders
#- 1.The application dated April 8, 2024 seeking review of the judgment delivered on 20th January 2022 is dismissed
- 2.The application dated 13th February 2024 seeking recusal of the firm of J. Kanyi, striking out of the suit against the 2nd Defendant and subdivision of Plot No. Kwale/Ukunda/1009 is dismissed
- 3.The application dated 5th April 2023 seeking stay of execution is dismissed
- 4.Costs of all three applications awarded to the Plaintiff
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 63(e), 80 and 99 of the Civil Procedure Act and Orders 2, 8, 40, 45 and 51 of the Civil Procedure Rules, 2010; Articles 40 and 50(1) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwachihi v Kamunya & 9 others (Environment & Land Case 5 of 2018) [2024] KEELC 7126 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7126/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.