Mohamed v Muhiddin & another (Environment and Land Case 470 of 2011) [2025] KEELC 5092 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the court is functus officio
Yes; the court had delivered final judgment and granted stay, and its earlier ruling of 19th February 2025 finding functus officio had not been reviewed or appealed against.
The court relied on its own ruling of 19th February 2025, which held that having pronounced itself with finality, the doctrine of functus officio took effect and the appellate court was the proper forum. That finding remained unreviewed. The judge therefore agreed with the 2nd defendant that the court lacked competence to vacate the stay order it had granted pending appeal.
Whether the application is res judicata
No; no similar application seeking the same orders had been heard and determined on merit.
The court perused the record and found no prior application seeking similar orders that had been heard and determined on merit by this court or the appellate court. The earlier rulings were on a preliminary objection to a 1st defendant's injunction application and on a striking-out application in the appeal, not on an application to vacate stay.
Whether the plaintiff met the threshold to vacate the stay order
No; the appeal was admittedly still pending, so no reasonable basis for vacating the stay was established.
The stay of 20th July 2018 was granted in terms of prayer (3) pending the 2nd defendant's intended appeal. Since the appeal (Civil Appeal No. E141 of 2022) remained pending, the purpose of the stay persisted and the plaintiff's grounds, including the collapse of the boundary wall, did not establish a basis for setting it aside.
Costs of the application
Awarded to the 2nd defendant as the successful party.
Section 27 of the Civil Procedure Act provides costs follow the event unless otherwise ordered for good reasons; the plaintiff's application having failed, costs went to the 2nd defendant. The court also found the application was not made in good faith and was an abuse of process.
Legal principles established
#- A court that has pronounced itself with finality is functus officio, and the forum for further intervention is the appellate court.
- Costs follow the event under section 27 of the Civil Procedure Act.
Court orders
#- 1.That the notice of motion dated 29th January 2025 is without merit.
- 2.The application is dismissed.
- 3.Costs awarded to the 2nd defendant.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over an interlocutory application in an ongoing suit (Civil Procedure Act, Chapter 21, Laws of Kenya)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed v Muhiddin & another (Environment and Land Case 470 of 2011) [2025] KEELC 5092 (KLR)", Case Analysis (2025). ELC Mombasa (Notice of Motion dated 29th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5092/eng@2025-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.