Nthenge v Mwasaru & 3 others (Sued in Their Capacities as Office Bearers of Ushirika Boma Welfare Society); Mwasaru & 3 others (Sued in Their Capacities as Office Bearers of Ushirika Boma Welfare Society) (Plaintiff to the Counterclaim); Nthenge & 6 others (Defendant to the Counterclaim) (Environment & Land Case 148 of 2018) [2025] KEELC 3539 (KLR)
The bottom line
#A Machakos court refused to reopen a decided case, confirming that once judgment is final, your options are appeal — not review.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Musee Manyolo & Associates Advocates should be granted leave to come on record as advocates of the plaintiff.
- 2.Whether the plaintiff has met the threshold to warrant a review of the orders that were issued in the judgment rendered on 29/04/2024.
- 3.What orders should be issued, including an order as to costs?
Key legal issues
#Whether leave should be granted for the incoming advocate to come on record post-judgment
The application failed because there was no evidence of service of the motion on the outgoing firm of F.M. Mulwa Advocate or its administrator, rendering the motion unsustainable.
Order 9 Rule 9 requires a post-judgment change of advocate to be effected by court order with notice to all parties or by consent. The court noted the uncertainty over the status of the deceased advocate's firm and the absence of any evidence of service on that firm or its administrator, so the mandatory procedure was not complied with.
Whether the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 was met
No error or mistake apparent on the face of the record was established; the plaintiff failed to discharge the burden and review was refused.
The only ground was the alleged mistake that an advocate not properly on record conducted the trial. The court found R.K. Mutua Advocate had always appeared as holding brief for or from F.M. Mulwa's firm, that representation was never challenged during trial, and the only issue (submissions filed without notice of change) had already been dealt with in the judgment. Mere dissatisfaction is a matter for appeal.
Whether the court, having rendered a final decision, could re-open the matter
The court is functus officio; the plaintiff's avenue was an appeal, not review.
Having rendered a final decision within its purview, the court invoked the functus officio doctrine as endorsed in Raila Odinga v IEBC, which prevents re-opening of a matter by the court that rendered the final decision. Any dissatisfaction lay in an appeal to the Court of Appeal.
Legal principles established
#- A person vested with adjudicative powers may exercise those powers only once in relation to the same matter; a final decision cannot be reviewed or varied by the decision maker (functus officio).
- An error or omission sufficient for review must be self-evident; an incorrect exposition of the law or erroneous conclusion of law is not a ground for review.
- Post-judgment change of advocate requires an order of the court upon application with notice to all parties, or a consent between the outgoing and incoming advocates.
Court orders
#- 1.The submissions by M/s. Musee Manyolo & Associates Advocates dated 15/01/2025 and the plaintiff's further affidavit deposed on 4/11/2024 are expunged from the record.
- 2.The motion dated 14/05/2024 is dismissed with costs to the defendants (in the original suit).
- 3.The file is effectively marked as closed.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 48 & 159 of the Constitution of Kenya; Sections 1A, 3A and 80 of the Civil Procedure Act; Orders 1 Rule 3, 10 Rules 10 & 11, 12 Rule 7, 22, 45 Rule 1 and 51 Rule 1 of the Civil Procedure Rules
Relief refused
#Leave for Musee Manyolo & Associates Advocates to come on record in place of F.M. Mulwa Advocate
No evidence of service of the motion on the firm of F.M. Mulwa Advocate or its administrator; motion unsustainable.
Setting aside the judgment of 9/02/2024 and hearing de novo
The relief is misplaced as the matter was heard on merits upon hearing all parties; grounds for setting aside for non-appearance did not arise.
Review of the orders granted in the judgment
No error or mistake apparent on the face of the record; the court is functus officio; any grievance lay on appeal.
Costs
The motion dated 14/05/2024 is dismissed with costs to the defendants (in the original suit).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Ultimately and for the reasons stated above, I find the motion dated 14/05/2024 not merited and it is hereby dismissed with costs to the defendants (in the original suit). This file is hereby effectively marked as closed.
Having rendered its final decision, it follows that this court is functus oficio. It must be noted the doctrine of functus oficio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision.
It will not be a sufficient ground for review that another Judge could have taken a different view of the matter.
Clearly, the relief for setting aside the judgment is misplaced as this matter was heard on merits upon hearing all parties.
Issues in the judgment
#The identity of the court is not stated in the ruling; only the delivery location (Machakos) and the judge appear.
The case number/title of the suit is not stated in the ruling.
The ruling refers inconsistently to the date of the judgment sought to be reviewed, variously 9/02/2024, 9/4/2024 and 29/04/2024.
Text contains typographical errors (e.g. 'functus oficio', 'efiected', 'plaintifi'), consistent with OCR/typing defects.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nthenge v Mwasaru & 3 others (Sued in Their Capacities as Office Bearers of Ushirika Boma Welfare Society); Mwasaru & 3 others (Sued in Their Capacities as Office Bearers of Ushirika Boma Welfare Society) (Plaintiff to the Counterclaim); Nthenge & 6 others (Defendant to the Counterclaim) (Environment & Land Case 148 of 2018) [2025] KEELC 3539 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3539/eng@2025-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.