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ELCPartially Allowednot_stated_in_judgment· [2025] KEELC 564 (KLR)

Marisia & 2 others v Kalungokor (Environment & Land Case 139 of 2013) [2025] KEELC 564 (KLR)

Environment and Land Court of Kenya
13 February 2025
7,525 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court allowed the Deputy Registrar to sign land transfer documents a defiant party refused to sign, and made that party pay the legal costs.

What this practically means

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Executive summary

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This is a first-instance ruling of the Environment and Land Court delivered on 13th February 2025 by Hon. Dr. Iur F. Nyagaka, Judge, in a long-running boundary dispute over land parcels West Pokot/Chepkono/169, 170 and 171. By Notice of Motion under sections 1A, 1B, 3A and 3B of the Civil Procedure Act, the Plaintiffs sought an order directing the Deputy Registrar to execute mutation forms implementing the County Surveyor's report of 30th September 2021 in place of the Defendant, who refused to sign them. The Defendant opposed, contending the application was misconceived, res judicata, and barred by functus officio since judgment was delivered on 27th February 2020 and directions given on 6th August 2021 committing implementation to the County Surveyor using the adjudication records. The Court summoned and heard the County Surveyor, Raymond Rotich, and the Land Registrar, Edwin Wafula, on the implementation. Framing four issues, the Court held it was not functus officio because it was only asked to supervise a post-judgment implementation step; the application was not res judicata as no similar prior application existed; and the application was merited because the surveyor properly used the adjudication records, PIDs, RIM and maintained boundaries in the presence of the parties. The Court noted that registration under general boundaries meant acreages could change either way upon implementation. The Court directed the Deputy Registrar to sign the mutation forms implementing the report of 30th September 2021 and ordered the Respondent to bear the costs of the application.

Key legal issues

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01

Whether the Court was functus officio

Holding

The Court was not functus officio because the application sought a post-judgment implementation step, not a merit-based re-opening of the judgment

Reasoning

Relying on Telkom Kenya v John Ochanda and Raila Odinga v IEBC, the Court held that the doctrine bars re-opening of a final decision but not post-judgment procedures. Since the parties kept complaining about non-implementation of the decree, the Court retained jurisdiction to ensure the decree was implemented through the surveyor and registrar.

p. 9
02

Whether the application was res judicata

Holding

The application was not res judicata as no similar application on the issues raised had previously been made

Reasoning

The earlier applications dismissed on 6th August 2021 concerned curving out 5.9 hectares from parcel 170 and calling a private surveyor, not implementation of the surveyor's report of 30th September 2021 through execution of mutation forms. The elements of res judicata, drawn from Section 7 of the Civil Procedure Act and the cited authorities, were therefore not met.

p. 10
03

Whether the application was merited

Holding

The application was merited; the County Surveyor properly implemented the decree and the Deputy Registrar was directed to execute the mutation forms

Reasoning

The decree directed the Land Registrar, assisted by the County Surveyor, to fix boundaries on the basis of the post-adjudication records, implying acreages would change. Oral testimony of the County Surveyor Raymond Rotich and Land Registrar Edwin Wafula showed the exercise used the PIDs, adjudication register and maintained boundaries, in the presence of the parties, and the mutation form followed the report of 30th September 2021.

p. 12
04

Effect of registration under general boundaries

Holding

Parcels registered under general boundaries may have ground acreages differing from registered acreages, and rectification may adjust them either way

Reasoning

The Court held that because the parcels were registered using general boundaries, implementation of the judgment by fixing boundaries could result in registered acreages increasing or decreasing depending on the boundaries established from the adjudication records. This contradicted the Respondent's argument that no party's registered acreage was intended to change.

p. 11

Legal principles established

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  • Functus officio prevents merit-based re-engagement with a decided matter but does not bar a court from carrying out post-judgment procedures to ensure implementation of its decree
  • Res judicata requires a former suit between the same parties litigating under the same title, before a competent court, heard and finally decided on merits

Court orders

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  1. 1.The Deputy Registrar of the Court is directed to sign or execute the Mutation Forms to implement the surveyor's report dated 30th September 2021, in place of the Defendant
  2. 2.The Respondent (Defendant) shall bear the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 3B
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 34
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Land Registration ActSection 20(1)

Cases cited (5)

  • Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited)
    [2014] eKLR
  • Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others
    [2013] eKLR
  • Suleiman Said Shabhal vs Independent Electoral & Boundaries Commission & 3 Others
    [2014] eKLR
  • Mwangi v Mokaya (Environment and Land Appeal 13 of 2023)
    [2023] KEELC 18642 (KLR) (6 July 2023) (Ruling)
  • Uhuru Highway Development Ltd v Central Bank of Kenya
    (1999) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 3B of the Civil Procedure Act; Article 159(2)(d) of the Constitution of Kenya, 2010 invoked to excuse a dating error

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Marisia & 2 others v Kalungokor (Environment & Land Case 139 of 2013) [2025] KEELC 564 (KLR)", Case Analysis (2025). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/564/eng@2025-02-13

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