Kimwele v Kubora & another; Mwasya & 5 others (Interested Parties) (Environment and Land Case 16 of 2017) [2025] KEELC 5636 (KLR)

The doctrine of functus officio preserves the finality of litigation. A judgment terminates the jurisdiction of the court that rendered it except in limited statutory exceptions. Here judgment was entered on the defendants' counterclaim on 28th May 2021 and remains undisturbed; consequently there are no live proceedings to which joinder could attach and the court cannot revisit its own decision.

Order 1 Rule 10(2) permits adding a party only to enable the court to settle all questions in a pending suit. The Everton Coal Enterprises decision, in pari materia with the Mutunga Rules, confirms joinder contemplates pending proceedings. As the suit was concluded by judgment in 2021, and the plaintiffs' suit abated following his death on 26th February 2024, there is no vehicle for joinder.

The record showed the plaintiff was served on all occasions; the court itself had ensured service was effected before proceeding. The plaintiff failed to attend hearing, prompting dismissal of his claim, and the defendants were permitted to prove their counterclaim exparte. Since service was diligent and effective, the judgment was regular and could not be disturbed.

The defendants showed that Samuel Mwanzia, brother of the Intended Interested Parties, had filed a similar application dated 19th September 2023 which was dismissed, and a further application withdrawn. The Applicants, who concealed that they are sons of the plaintiff, are attempting through subterfuge to achieve what their brother failed to accomplish, amounting to vexatious abuse of process.