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ELCAllowedAppeal from PMCC Kajiado 281 of 2013 (Memorandum of Appeal)

Makau v Malika (Environment and Land Appeal E020 of 2023) [2025] KEELC 4535 (KLR)

Environment and Land Court / High Court sitting at Kajiado
12 June 2025
LKL. Komingoi
1,444 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a first appeal against the ruling of Hon. E. Kagoni delivered on 26th September 2023 in PMCC Kajiado 281 of 2013, dismissing the Appellant's application dated 12th July 2022 seeking reinstatement of her suit. The original 2013 suit concerned competing claims of ownership of plot No. 2301/Business/Emali T. Centre, and had been dismissed for want of prosecution in August 2021 after long inactivity since April 2014. The Appellant's reinstatement application sought reinstatement and interim injunctive relief; on 30th August 2022 the trial court granted prayers 1 and 2 (including reinstatement) ex parte pending an inter partes hearing. In its ruling of 26th September 2023, however, the trial court re-determined the reinstatement prayer and dismissed it. L. Komingoi J held that the trial court had become functus officio regarding the reinstatement prayer, having already determined it and issued orders; re-determining it was an error and a court cannot sit on its own decision. The respondent's argument that the ex parte order was an error apparent on the face of the record requiring review was rejected, since the court record was always available for perusal. The court found no error in the magistrate's failure to determine the remaining prayers, as they were moot once the suit was not reinstated. The appeal succeeded; the suit was remitted for hearing before another magistrate other than Hon. E. Kagoni, with costs of the appeal to abide the outcome of the lower court suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Learned Magistrate erred in dismissing the Appellant's application dated 12th July 2022 with costs
  2. 2.Whether this Appeal is merited
  3. 3.Who should bear costs of the Appeal?

Key legal issues

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01

Whether the trial magistrate erred in re-determining the reinstatement of the suit already granted ex parte on 30th August 2022

Holding

The magistrate erred: reinstatement (prayer 2) had been granted on 30th August 2022, so re-determining it was functus officio; the appeal succeeds and the suit is remitted for hearing before another magistrate.

Reasoning

The trial court on 30th August 2022 granted prayers 1 and 2 of the application dated 12/07/2022, including reinstatement of PMCC 281 of 2013, pending inter partes hearing. The ruling of 26th September 2023 nevertheless re-determined prayer 2 and dismissed reinstatement. A court cannot sit on its own decision; only an appeal (or review) could reopen it. The respondent's failure to learn of the ex parte order was not justified since the court file was available for perusal.

p. 4
02

Whether the trial court erred in not determining the remaining prayers after finding the suit should not be reinstated

Holding

No error - once the suit was not reinstated, the other prayers were moot and academic.

Reasoning

The appellant complained that the magistrate failed to determine the remaining prayers. The court held that once the suit remained dismissed for want of prosecution, determining any other issue would have been an academic exercise and not a judicious use of the court's time and resources; the remaining prayers were therefore moot.

p. 4

Legal principles established

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  • Once a trial court has already determined a prayer and issued orders on it, the court becomes functus officio on that prayer and it cannot re-determine it; reconsideration lies only on appeal or review.
  • On a first appeal, the court must re-evaluate the evidence and draw its own conclusions, bearing in mind it neither saw nor heard the witnesses.

Court orders

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  1. 1.The Appeal succeeds
  2. 2.PMCC Kajiado 281 of 2013 is remitted back to the Lower Court for hearing and determination before another Magistrate other than Hon. E. Kagoni
  3. 3.Costs of the Appeal shall abide the outcome of the Lower Court's suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

LK
majority

Wrote the judgment

On appeal from
Magistrates' Court at Kajiado (PMCC Kajiado 281 of 2013)
PMCC Kajiado 281 of 2013
Jurisdiction invoked
First appeal against the ruling of the learned Magistrate in PMCC Kajiado 281 of 2013

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Therefore, the reliefs for determination were 3, 4 and 5. However, the Ruling dated 26th September 2023 made a determination of prayer 2, 4 and 5. Which was an error because prayer 2 had already been determined. As such, the Court was functus oficio and the only way that prayer was open for consideration was through an Appeal.
p. 3functus officio - court cannot re-determine an already granted prayer
The Court file and court record is always available for perusal. Therefore, nothing stopped the Respondent from perusing the file to get acquainted with what had transpired in their absence.
p. 3rejection of respondent's excuse of ignorance of ex parte reinstatement order
The Appeal hereby succeeds and PMCC Kajiado 281 of 2013 is remitted back to the Lower Court for hearing and determination before another Magistrate other than Hon. E. Kagoni.
p. 4final orders - appeal allowed, remittal to another magistrate
Costs of this Appeal shall abide the outcome of the Lower Court's suit.
p. 4costs order

Issues in the judgment

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minor

The parties are referred to throughout only as 'Appellant' and 'Respondent'; no proper names of the parties are given in the judgment text supplied.

minor

The case number of the present appeal before the judge is not stated in the judgment; only the lower court number PMCC Kajiado 281 of 2013 appears.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Makau v Malika (Environment and Land Appeal E020 of 2023) [2025] KEELC 4535 (KLR)", Case Analysis (2025). Appeal from PMCC Kajiado 281 of 2013 (Memorandum of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4535/eng@2025-06-12

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