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ELCDismissedNot stated in the judgment (Petition dated 23rd July 2020 referred to)

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)

Environment and Land Court
23 June 2025
3,333 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The court dismissed an attempt to relitigate a concluded land case, ruling it had no power to revisit final judgments.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru by Oguttu Mboya, J, on an application dated 4th March 2025 filed by the 5th and 6th respondents to a petition that had been heard and determined by Hon. Justice C. Nzili in a judgment delivered on 5th October 2022. The applicants sought orders restraining the Meru County Executive Committee member for lands and the County Surveyor from interfering with fifty acres forming part of Plot No. L.R 2890 Timau Township, Buuri Sub-county, pending determination by the National Land Commission, and sought enforcement through the OCS Umande Police Station. They argued that the County Government of Meru had acted in contempt of the judgment by a letter dated 10th March 2025 seeking allocation of the suit property. The Petitioner, and the 2nd and 3rd respondents through the Attorney General, opposed, contending the court lacked jurisdiction and was functus officio. The court framed three issues. First, the supporting and further affidavits were commissioned by an advocate sharing the instructing law firm's postal address, constituting prohibited in-house commissioning under Section 4 of the Oaths and Statutory Declarations Act; the affidavits were struck out, leaving the application unsupported and defective. Second, granting the injunction would create orders at variance with the earlier judgment, whose one-year status quo order lapsed on 4th October 2023, amounting to a concurrent court sitting on appeal on its peer's decision. Third, the court was functus officio, having declined a permanent injunction in the prior judgment; reliance was placed on Telkom Kenya Ltd v John Ochanda and Kenya Hotel Properties Ltd v Attorney General. The application was dismissed with costs to the Petitioner and the 2nd and 3rd respondents only, to be agreed or taxed.

Questions the Court framed

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

  1. 1.whether the affidavits underpinning the application are competent and legally tenable or otherwise
  2. 2.whether the application is tantamount to inviting the court to sit on appeal on the decision of a court of concurrent jurisdiction
  3. 3.whether the court is functus officio

Key legal issues

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01

Competence of the supporting and further affidavits

Holding

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

Reasoning

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.

p. 5
02

Whether the application invited the court to sit on appeal on a decision of a concurrent court

Holding

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

Reasoning

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.

p. 6
03

Whether the court is functus officio

Holding

Yes; the court had rendered final judgment and declined a permanent injunction, so the applicants cannot seek by side-wind orders previously declined

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The Application dated 4th March 2025 be and is hereby dismissed
  2. 2.Costs of the Application be and are hereby awarded to the Petitioner; 2nd and 3rd Respondents only
  3. 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

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

majority

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

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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

p. 7

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

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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.

the two [2] sets of afidavits beforehand are therefore null and void. In this regard, same are thus amenable to be struck out
p. 5invalid commissioning of affidavits
a court cannot issue subsequent orders which are at variance with previous orders that have not been varied, reviewed and or set aside
p. 6conflicting orders by courts of concurrent jurisdiction
The Application dated 4th March 2025 be and is hereby dismissed
p. 7final orders
Costs of the Application be and are hereby awarded to the Petitioner; 2nd and 3rd Respondents only
p. 7costs order

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.