Mwariama & 18 others (Suing on their own behalf of about 3,000 Residents of Timau Area in Buuri West Sub-County) v Commisison & 5 others; Meru County & another (Interested Parties) (Environment and Land Petition E010 of 2020 & Petition 1 of 2022 (Consolidated)) [2025] KEELC 5193 (KLR)
The bottom line
#The court dismissed an attempt to relitigate a concluded land case, ruling it had no power to revisit final judgments.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the affidavits underpinning the application are competent and legally tenable or otherwise
- 2.whether the application is tantamount to inviting the court to sit on appeal on the decision of a court of concurrent jurisdiction
- 3.whether the court is functus officio
Key legal issues
#Competence of the supporting and further affidavits
The affidavits were invalidly commissioned by a commissioner for oaths sharing the same postal address as the instructing law firm, constituting prohibited in-house commissioning; they were struck out and expunged, leaving the application unsupported and defective
Section 4 of the Oaths and Statutory Declarations Act prohibits a commissioner for oaths from acting in a matter in which he is the advocate for a party or is interested. The commissioner shared the law firm's postal address, evidencing in-house commissioning. The affidavits were rendered illegal, invalid, null and void, and were struck out, leaving the application without any affidavit and thus deficient and liable to be struck out.
Whether the application invited the court to sit on appeal on a decision of a concurrent court
Yes; granting an injunction that would subsist beyond the one-year status quo ordered in the 5th October 2022 judgment would create conflicting orders by judges of concurrent jurisdiction, which is impermissible
The prior judgment limited the status quo to one year, expiring 4th October 2023, and was never reviewed or extended. A new injunction would create two parallel, conflicting sets of orders, bringing the court of record into disrepute. The proper avenues under the law exist for implementing a judgment, not fresh orders through a concurrent court.
Whether the court is functus officio
Yes; the court had rendered final judgment and declined a permanent injunction, so the applicants cannot seek by side-wind orders previously declined
The petition was heard and determined; the learned judge declined a permanent injunction sought by the current applicants. Re-engagement would reopen determined issues. Relying on Telkom Kenya Ltd v John Ochanda, once final judgment is entered and decree issued, the court is barred from merit-based re-engagement, subject only to limited exceptions such as correcting clerical errors.
Legal principles established
#- A commissioner for oaths shall not commission an affidavit in a matter in which he is the advocate, clerk to such advocate, or interested; in-house commissioning renders affidavits invalid
- A court of concurrent jurisdiction cannot issue orders contradicting previous unvaried orders of a similar court; doing so is sitting on appeal on its own peer's decision
- Functus officio bars merit-based re-engagement with a case once final judgment has been entered and a decree issued
Court orders
#- 1.The Application dated 4th March 2025 be and is hereby dismissed
- 2.Costs of the Application be and are hereby awarded to the Petitioner; 2nd and 3rd Respondents only
- 3.The Costs in terms of clause (II) shall be agreed upon and in default be taxed by the Deputy Registrar of the court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the petition; the application sought incidental/implementation orders in a concluded petition (judgment of 5th October 2022 by Hon. Justice C. Nzili, Judge)
Relief refused
#Orders restraining the Meru County Executive Committee member for lands and the County Surveyor from interfering with 50 acres of Plot No. L.R 2890 Timau Township, and directions pending NLC determination
The supporting and further affidavits were invalidly commissioned by an advocate connected with the instructing law firm and were struck out; the application sought orders at variance with the judgment of a concurrent court and was barred by functus officio
Costs
Costs of the Application awarded to the Petitioner; 2nd and 3rd Respondents only, to be agreed and in default taxed by the Deputy Registrar
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.
the two [2] sets of afidavits beforehand are therefore null and void. In this regard, same are thus amenable to be struck out
a court cannot issue subsequent orders which are at variance with previous orders that have not been varied, reviewed and or set aside
The Application dated 4th March 2025 be and is hereby dismissed
Costs of the Application be and are hereby awarded to the Petitioner; 2nd and 3rd Respondents only
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.
- Oluoch v Teachers Service Commission & another (Petition E003 of 2025) [2025] KEELRC 2362 (KLR)[2025] KEELRC 2362 (KLR)8 Aug 2025
Cite this brief
#Cite this brief
Caselaw, "Mwariama & 18 others (Suing on their own behalf of about 3,000 Residents of Timau Area in Buuri West Sub-County) v Commisison & 5 others; Meru County & another (Interested Parties) (Environment and Land Petition E010 of 2020 & Petition 1 of 2022 (Consolidated)) [2025] KEELC 5193 (KLR)", Case Analysis (2025). Not stated in the judgment (Petition dated 23rd July 2020 referred to). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5193/eng@2025-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.