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ELCDismissedELC Petition No. E006 of 2021· [2025] KEELC 3006 (KLR)

Osman & 164 others (Suing on Their Behalf and Behalf of Residents of Merti Sub-County, Chari, and Cherab Wards in Isiolo County) v Northern Rangelands Trust & 10 others (Petition 006 of 2021) [2025] KEELC 3006 (KLR)

Environment and Land Court
2 April 2025
15,816 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~63 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to reopen or pause a judgment on community land, confirming parties who were served and represented cannot escape rulings they participated in.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (Angote PJ, Yano J and Nzili J) determined three post-judgment Motions arising from the court's judgment of 24th January 2025 in a constitutional petition concerning community land, conservancies and armed rangers in Isiolo County. The 1st Respondent (Northern Rangelands Trust) sought a stay of execution pending an intended appeal; the proposed 10th and 11th Respondents (Biliqo Bulesa CBO and Cherab Community Conservancy) sought to be joined, to have the judgment set aside and the Petition heard de novo, alleging they were never parties and never served. The court framed three issues: functus officio, setting aside/joinder, and stay. It held it was not functus officio since post-judgment applications for setting aside, joinder and stay are within its jurisdiction. On setting aside, it found the affidavits of service unrebutted, that electronic service via WhatsApp was valid, and that counsel had acted for the officials throughout, even filing a Notice of Appeal; the judgment was regular and inter partes. Article 260 does not automatically allow unincorporated bodies to sue or be sued in their own names, so suing the officials was proper; no exceptional circumstances justified post-judgment joinder. On stay, the court found substantial loss not demonstrated with tangible evidence, noting the material relied upon was either undisclosed at trial or procured after judgment, and that staying a judgment that stopped unconstitutional acts would sanction illegality; public interest could not justify unconstitutional conduct. All three Motions were dismissed with no orders as to costs.

Key legal issues

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01

Whether the court is functus officio after delivering judgment

Holding

The court is not functus officio; it retains jurisdiction over consequent, complementary and facilitative post-judgment processes such as setting aside, joinder and stay applications

Reasoning

The court traced the doctrine through Odinga v IEBC and Jersey Evening Post, then relied on Mombasa Bricks & Tiles and Telkom Kenya v Ochanda to hold that the bar applies only to merit-based decisional engagement. Post-judgment applications for setting aside, joinder and stay are matters the court is vested with jurisdiction to undertake, guided by the relevant legal parameters.

p. 17
02

Whether the judgment should be set aside as an irregular judgment for alleged non-service and unauthorized representation

Holding

The judgment was regular and inter partes; the 3rd and 5th Respondents were duly served, were aware of the proceedings and participated through counsel, so the judgment cannot be set aside

Reasoning

Affdavits of service were unrebutted by cross-examination; electronic service via WhatsApp is valid under Order 5 Rule 22B; counsel (Ochieng Ogola & Co) was on record throughout, filed pleadings and even a Notice of Appeal for the 3rd and 5th Respondents. No evidence of mistake of counsel was established, and any such mistake would not automatically warrant setting aside. The distinction between regular and irregular default judgments in James Kanyita Nderitu was applied.

p. 21
03

Whether the CBOs should have been sued in their own names under Article 260 of the Constitution

Holding

Suing the officials of the conservancies in their official capacities was appropriate; Article 260 does not confer an automatic right on unincorporated bodies to sue or be sued in their own names

Reasoning

Applying Kipsiwo, Kenya Power v Benzene Holdings, and Kisumu Bar Owners Association, the court held that the manner in which unincorporated bodies litigate remains governed by procedural and statutory considerations despite the Article 260 definition of 'person'. The 3rd and 5th Respondents were the legitimate officials of the proposed entities and had been sued as such.

p. 22
04

Whether a stay of execution pending appeal should be granted to the 1st Respondent

Holding

Stay refused: the application was timeous, but substantial loss was not demonstrated and the evidence relied upon was new, undisclosed material; granting stay would sanction unconstitutional acts

Reasoning

Under Order 42 Rule 6(2) and Rule 32 of the Mutunga Rules, substantial loss must be real, demonstrable and cogently evidenced. The projects, donor funds, ranger certificates and police letters relied on were either undisclosed at trial or procured after the trial or judgment. The court invoked public interest jurisprudence (CS Ministry of Health v Aura; East African Cables) and held that public interest cannot justify acts already found unconstitutional. Security was unnecessary.

p. 28

Legal principles established

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  • The functus officio doctrine does not bar post-judgment applications for setting aside, joinder and stay of execution; the bar is only on merit-based decisional engagement with the concluded judgment
  • An affidavit of service constitutes prima facie proof of service, conclusive unless rebutted by cogent evidence, ordinarily through cross-examination of the process server
  • Article 260's definition of 'person' as including unincorporated associations does not automatically entitle such bodies to sue or be sued in their own names; suits must be brought through their officials unless statute provides otherwise
  • Substantial loss for stay of execution must be demonstrated with tangible and cogent evidence and cannot rest on material not disclosed at trial; a court will not stay a judgment that stopped unconstitutional acts
  • The court need not assess the arguability of an intended appeal before granting a stay under Order 42 Rule 6

Court orders

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  1. 1.The 1st Respondent's Notice of Motion dated 7th February 2025 is found to be unmerited and is dismissed
  2. 2.The 10th proposed Respondent's Notice of Motion dated 6th February 2025 is found to be unmerited and is dismissed
  3. 3.The 11th proposed Respondent's Notice of Motion dated 7th February 2025 is found to be unmerited and is dismissed
  4. 4.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 40, 42, 47, 48, 50(1), 60, 69, 159, 258, 259(1), 260
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 2, 3, 3(5), 3(8), 5, 19, 25, 32
  • Environment and Land Court ActSections 3, 12, 19
  • Civil Procedure Rules, 2010Order 42 Rule 6, Order 45 Rule 1, Order 5 Rule 22B, Section 1A
  • Civil Procedure ActCap 21; Section 80
  • Evidence ActSection 120 (Cap 80)
  • Community Land ActSections 29(c), 36
  • Community Groups Act, 2022not specified
  • Climate Change Act and Climate Change (Carbon Markets) Regulations, 2024Regulation 38

Cases cited (30)

  • Odinga vs Independent Electoral & Boundaries Commission & 3 Others (Petition 5, 4 & 3 of 2013)
    [2013] KESC 8 (KLR) (Civ)
  • Jersey Evening Post Limited vs A. Thani
    [2002] JLR 542
  • Mombasa Bricks & Tiles Ltd & 5 Others vs Arvind Shah & 7 Others
    [2018] eKLR
  • Telkom Kenya Ltd vs John Ochanda
  • Karl Wehner Claasen vs Commissioner of Lands & 4 others
    [2019] eKLR
  • James Kanyita Nderitu vs Maries Philotas Ghika & Another
    [2016] KECA 470 (KLR)
  • Kaluma vs NGO C0-ordination Board & 5 others
    [2023] KESC 72 (KLR)
  • JMK vs MWM & Another
    [2015] KECA 532 (KLR)
  • Kipsiwo Community Self Help Group vs Attorney General & 6 Others
    [2013] KEELC 63 (KLR)
  • Kenya Power & Lighting Co Ltd vs Benzene Holdings Ltd t/a Wyco Paints
    [2016] eKLR
  • Fort Hall Bakery Supply Co v Fredrick Muigai Wangoe
    (1959) EA 474
  • Kisumu Bar Owners Association vs Cabinet Secretary, Ministry of Interior & Coordination of National Government & 2 others
    (Constitutional Petition E002 of 2024) [2024] KEHC 6003 (KLR)
  • Kituo cha Sheria vs John Ndirangu Kariuki & Another
  • Dennis Ololoigero & 2 Others vs The Art of Ventures Limited & 2 Others
    [2006] eKLR
  • Tana and Athi Rivers Development Authority vs Jeremiah Kimigho Mwakio & 3 others
    [2015] KECA 674 (KLR)
  • Gerald Kithu Muchange vs Catherine Muthoni Ngare & Another
    (2020) eKLR
  • Mary Beach Limited vs Attorney General & 18 others
    [2018] eKLR
  • Vishram Ravji Halai vs Thornton & Turpin Civil Application No. Nai. 15 of 1990
    [1990] KLR 365
  • Butt vs Rent Restriction Tribunal
    [1982] KLR 417
  • Antoine Ndiaye vs. African Virtual University
    [2015] eKLR
  • Rhoda Mukuma vs John Abuoga
    [1988] eKLR
  • Century Oil Trading Company Ltd vs Kenya Shell Limited (as cited in Muri Mwaniki & Wamiti Advocates Vs Wings Engineering Services Limited [2020] eKLR)
    [2020] eKLR
  • Kenya Shell Limited vs Benjamin Karuga Kibiru & Another
    [1986] eKLR
  • James Wangalwa & Another vs. Agnes Naliaka Cheseto
    [2012] eKLR
  • Cabinet Secretary, Ministry of Health vs Aura & 13 Others
    (Civil Appeal (Application) E565 of 2024) [2024] KECA 1195 (KLR)
  • East African Cables Limited vs Public Procurement Complaints, Review And Appeals Board & Another
    [2007] eKLR
  • Toshika Construction Company Limited vs Harambee Co-operative Savings & Another
    [2019] KECA
  • Grace Akinyi vs Gladys Kemunto Obiri & Another
    [2016] eKLR
  • Nurdin Bandali vs. LOM Bank
    (1963) E.A.
  • Gachagua & 40 others vs Speaker, National Assembly & 15 others; Law Society of Kenya & 7 others (Interested Parties)
    [2024] KEHC 13473 (KLR)
Jurisdiction invoked
Articles 47, 50(1) and 159 of the Constitution; Sections 3(1) and 19 of the Environment and Land Court Act; Rules 3, 5, 19, 25 and 32 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)

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, "Osman & 164 others (Suing on Their Behalf and Behalf of Residents of Merti Sub-County, Chari, and Cherab Wards in Isiolo County) v Northern Rangelands Trust & 10 others (Petition 006 of 2021) [2025] KEELC 3006 (KLR)", Case Analysis (2025). ELC Petition No. E006 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3006/eng@2025-04-02

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