Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of motion dated 15-2-2024 in Murang'a ELC suit (judgment and decree dated 10-11-2016)· [2025] KEELC 1285 (KLR)

Kung’u v Kung’u (Environment & Land Case 11 of 2023) [2025] KEELC 1285 (KLR)

Environment and Land Court
18 March 2025
1,480 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court reopened its own decision after new building on the disputed land, ordering its registrar to complete the transfer paperwork.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Murang'a (M.N. Gicheru, J) on the Plaintiff's notice of motion dated 15-2-2024, brought under Order 45(1) of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution. The Plaintiff sought review, variation or setting aside of an order dated 28-9-2023 dismissing his earlier motion to cite the Defendant for contempt of the judgment and decree dated 10-11-2016, which had permanently injuncted her from disposing of suit land Loc.4/Naaro/1557 and required registration of a life interest for the Defendant and reversionary interest for the Plaintiff, in line with Thika CM Succession Cause No. 431 of 2009. The Defendant opposed, arguing the threshold for review was unmet, that the court was functus officio on contempt, and that the application was inordinately delayed. The court framed three issues: the review threshold, whether appeal rather than review was required, and functus officio. It held review was warranted on 'other sufficient reason' because a second house had been built on the suit land and the two decrees remained unimplemented; that appeal was unnecessary; and that the court was not functus officio while the decrees were unimplemented. The court directed the Deputy Registrar to execute instruments giving effect to both decrees, ordered demolition of the second house at the builder's (John Kung'u Ngigi's) cost, but allowed 60 days for negotiated implementation, failing which the orders would take full effect. Directions were issued under sections 1A(2) and (3) of the Civil Procedure Act, section 20 of the Environment and Land Court Act and Article 159(2)(c) of the Constitution.

Key legal issues

#
01

Whether the motion met the threshold for review under section 80 CPA and Order 45

Holding

Yes - review was warranted on the ground of other sufficient reason: a second house had been built on the suit land, the two decrees remained unimplemented, and the Plaintiff had a good (indeed no-delay) explanation

Reasoning

The Deputy Registrar's report confirmed two houses built while the case was pending. The first house was excused by the ruling of 28-9-2023 but the second was not excusable. The unimplemented decrees meant the application was not spent, and the motion followed soon after construction of the second house began.

p. 2
02

Whether the Plaintiff should have appealed instead of seeking review

Holding

No; appeal was not necessary as the Plaintiff was satisfied with the ruling which restated his reversionary interest

Reasoning

The court found the Plaintiff need not have appealed because the ruling of 28-9-2023 had restated his reversionary interest and permitted the Defendant only a permanent house; the subsequent construction of a second house was the trigger for review, not dissatisfaction with the ruling.

p. 3
03

Whether the court was functus officio regarding contempt and implementation orders

Holding

No; the court remains seized until the decrees are fully implemented

Reasoning

Because the decrees of the Thika CM Succession Cause and of this Court remain unimplemented and breached, the court retains jurisdiction to direct their execution; functus officio arises only on full implementation.

p. 3

Legal principles established

#
  • Review may be granted on three grounds: discovery of new and important matter, error apparent on the face of the record, or other sufficient reason
  • A court retains jurisdiction over a matter (is not functus officio) so long as its decree remains unimplemented

Court orders

#
  1. 1.Review of the order dated 28-9-2023 warranted under 'other sufficient reason'
  2. 2.The Deputy Registrar of the Court to execute all the necessary instruments to give effect to the decrees of this Court and Thika CM Succession Cause No. 431 of 2009
  3. 3.The second house built on the suit land to be demolished at the cost of the party who built it, namely John Kung'u Ngigi
  4. 4.Parties at liberty to negotiate implementation of the two orders within 60 days, failing which the two orders to be implemented in full
  5. 5.Prayer No. 4 (Deputy Registrar's site visit and report) noted as already implemented
Jurisdiction invoked
Order 45(1) of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act; section 20 of the Environment and Land Court Act; Article 159 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Kung’u v Kung’u (Environment & Land Case 11 of 2023) [2025] KEELC 1285 (KLR)", Case Analysis (2025). Notice of motion dated 15-2-2024 in Murang'a ELC suit (judgment and decree dated 10-11-2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1285/eng@2025-03-18

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