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ELCStruck OutNot stated in the judgment text· [2024] KEELC 7200 (KLR)

Muia v Ndetei & another; Kitilimu alias Agnes Nduku Kitilimu (Applicant) (Environment & Land Case 98 of 2017) [2024] KEELC 7200 (KLR)

Environment and Land Court
23 October 2024
2,497 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to reopen a concluded case, confirming that once final judgment is upheld on appeal, no new party can join or reverse it.

What this practically means

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Executive summary

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The Applicant, claiming to be the registered owner of Plot No. 556 Emali Township, filed a Notice of Motion dated 25th September 2024 seeking stay of execution of the judgment, setting aside of a ruling delivered on 24th January 2024, review of the judgment/decree, and leave to be joined in the proceedings. She asserted that the Plaintiff intended to demolish her property in execution of the decree. The Plaintiff raised a preliminary objection on two grounds: that the court was functus officio and lacked jurisdiction, and that the Applicant had no locus standi, being a stranger to the suit. The court applied Mukisa Biscuits and Oraro v Mbaja to confirm the objection was a pure point of law. On functus officio, the court found that it had delivered judgment on 28th December 2018, that the Defendant's appeal (Civil Appeal No. 128 of 2019) had been dismissed and the judgment upheld by the Court of Appeal on 7th July 2023, so the court had performed all its duties and could not reopen the matter. On locus standi, the court held that Order 1 Rule 10(2) joinder is unavailable where the suit has been finally determined; quoting J.M.K v M.W.M and Tang Gas Distributors, joinder after judgment is only permissible where something remains to be done. There being no suit pending, the Applicant had no right to be heard and the application for joinder could not issue. The court also noted the decree concerned Emali Township Block 1/198, a distinct property from Plot No. 556 claimed by the Applicant. The preliminary objection was upheld and the application struck out with costs.

Key legal issues

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01

Whether the court is functus officio

Holding

Yes. The court delivered judgment on 28th December 2018; the Defendant appealed and the Court of Appeal upheld the judgment on 7th July 2023. The court has performed all its duties and cannot reopen the matter.

Reasoning

The court adopted the doctrine as stated in Telkom Kenya Ltd v John Ochanda and Jersey Evening Post Ltd v Al Thani (cited in Raila Odinga v IEBC): once proceedings are finally concluded and the judgment perfected, the court cannot review or alter its decision; any challenge must go to a higher court. Since this court's judgment was upheld by the Court of Appeal, it became functus officio and lacked jurisdiction to entertain the review application.

p. 4
02

Whether the Applicant has locus standi to bring the application

Holding

No. The Applicant is not a party to the suit, and joinder under Order 1 Rule 10(2) is unavailable because the suit was finally determined; accordingly she has no right to appear or be heard.

Reasoning

Relying on J.M.K v M.W.M (quoting Tang Gas Distributors Ltd v Said), joinder after judgment is only possible where something remains to be done, such as assessment of damages. Here the Applicant sought joinder after the Court of Appeal had upheld the judgment and execution was underway; there is no suit pending for her to join. Consequently she has no locus standi and the application could not issue.

p. 5
03

Whether the preliminary objection is a pure point of law

Holding

Yes. Both functus officio and locus standi are pure points of law capable of disposing of the application without considering its merits.

Reasoning

Applying Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd and Oraro v Mbaja, the court held that a preliminary objection must rest on points of law not blurred with factual contest. The grounds of functus officio and lack of locus standi raised by the Plaintiff were self-evident points of law that could dispose of the application at the threshold, so the objection was properly before the court.

p. 3

Legal principles established

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  • Once a court has delivered final judgment and that judgment has been upheld on appeal, the court becomes functus officio and lacks competence to reopen, review or stay the matter
  • A party cannot be joined to proceedings after the suit has been finally heard and determined; without joinder a stranger has no locus standi to seek orders in the suit

Court orders

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  1. 1.The preliminary objection dated 8th October, 2024 is upheld
  2. 2.The application dated 25th September, 2024 is struck out with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (15)

  • Mukisa Biscuits Manufacturing Company Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • Oraro Vs Mbaja
    (2005) eKLR
  • Telkom Kenya Limited Vs John Ochanda
    (2014) eKLR
  • Jersey Evening Post Limited v Al Thani
    (2002) JLR
  • Raila Odinga & 2 Others Vs Independent Electoral and Boundaries Commission & 3 Others
    2013 eKLR
  • Alfred Njau and Others vs City Council of Nairobi
    (1982) KAR 229
  • Law Society of Kenya Vs Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000
  • J.M.K vs M.W.M & Another
    (2015) eKLR
  • TANG GAS DISTRIBUTORS LTD V SAID & OTHERS
    (2014) EA 448
  • Florence Nafula Ayodi & 5 others v John Tabalya Mukite & another; Benson Girenge Kidiavai & 67 others (Interested Parties)
    [2021] KEELC 1476 (KLR)
  • Civil Appeal No. 112 of 2021
  • Civil Appeal No. 189 of 2019
  • Civil Appeal No. 30 of 2019
  • Civil Case No. E011 of 2023
  • Civil Appeal No. 128 of 2019
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 45 Rule 1 and Order 51 of the Civil Procedure Rules (application for review, setting aside and stay)

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, "Muia v Ndetei & another; Kitilimu alias Agnes Nduku Kitilimu (Applicant) (Environment & Land Case 98 of 2017) [2024] KEELC 7200 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7200/eng@2024-10-23

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