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ELCPartially AllowedNotice of Motion dated 16th October 2024 (case number of the suit not stated in the ruling)· [2025] KEELC 5729 (KLR)

Ojwang v Ghelani & 5 others; Chaju Builders Limited (Interested Party) (Environment and Land Case 232 of 2013) [2025] KEELC 5729 (KLR)

Environment and Land Court
31 July 2025
5,978 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 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 ruling of the Environment and Land Court at Kisumu by Okong'o J. determined a Notice of Motion dated 16th October 2024 by the 3rd and 4th Defendants in a long-running land dispute over Kisumu/Kanyakwar 'B'/396. The ex parte judgment of 18th May 2016 in the Plaintiff's favour had been set aside on 15th February 2017 for want of service, the suit was heard afresh, and by final judgment of 7th December 2021 the Plaintiff's suit was dismissed with a finding that the 3rd and 4th Defendants were bona fide purchasers. The Plaintiff nonetheless subdivided the suit property into parcels 2732, 2733 and 2734 in August 2016 and in February 2024 purported to sell parcel 2734 to Chaju Builders Limited, which was later joined as an Interested Party. The 3rd and 4th Defendants sought declarations that the setting-aside order nullified all subsequent transactions and cancellation of the subdivisions with restoration of the register for parcels 1689-1770. The Plaintiff and Chaju opposed on grounds that the court was functus officio and that Chaju was an innocent purchaser for value without notice. The court held it retained jurisdiction under Section 34 of the Civil Procedure Act to resolve questions arising on execution of the decree, that setting aside the ex parte judgment rendered all transactions founded on it null and void, and that Chaju could derive no title from a Plaintiff who had none, producing no title deed beyond a sale agreement. The application was allowed: Chaju was joined, the transactions were declared null and void, the subdivisions were cancelled, the Land Registrar was ordered to restore the register for parcels 1689-1770, and costs were awarded to the 3rd and 4th Defendants against the Plaintiff and Chaju.

Key legal issues

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01

Whether the court was functus officio after the final judgment of 7th December 2021

Holding

The court was not functus officio; Section 34 of the Civil Procedure Act empowers it to determine questions between parties relating to execution, discharge or satisfaction of the decree without a separate suit.

Reasoning

The functus officio doctrine embodies finality, but a court executing a decree retains jurisdiction over questions of execution, discharge or satisfaction. Chaju's title claim was rooted in the set-aside 2016 judgment, so the dispute fell within Section 34. Although Chaju was not originally a party, it was joined for the application and had procedural safeguards available, including requesting oral evidence or cross-examination, which it did not employ.

p. 7
02

Effect of the order of 15th February 2017 setting aside the ex parte judgment

Holding

The setting-aside order annulled the ex parte judgment, overturned its execution, rendered all transactions founded on it null and void, and restored the status quo whereby the suit property stood subdivided into Kisumu/Kanyakwar 'B'/1689-1770.

Reasoning

Once a judgment and decree are set aside, they cease to exist and can only be revived by review or appeal, neither of which the Plaintiff pursued. The Plaintiff's subdivision of 15th August 2016 rested solely on the set-aside judgment. Ownership reverted to the 3rd and 4th Defendants and was confirmed in the final judgment of 7th December 2021, which the Plaintiff never appealed or sought to review.

p. 9
03

Whether Chaju Builders Limited acquired a protectable title as innocent purchaser for value

Holding

Chaju acquired nothing; the Plaintiff had no interest to sell when it purportedly sold parcel 2734 in February 2024, and Chaju produced no registered title, only a sale agreement.

Reasoning

The purported sale occurred two years after the final judgment extinguishing the Plaintiff's interest and was an act of fraud and contempt. An innocent purchaser cannot derive title from a seller who has none. A sale agreement does not amount to a title, and in the absence of a certificate of search or register evidence, Chaju's claimed registration was unproved and would in any event have made no difference.

p. 9

Legal principles established

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  • Setting aside a judgment annuls it and renders void all transactions and execution founded upon it, restoring the status quo ante.
  • A party cannot acquire a better title than that held by the transferor; a void act is a nullity needing no court order to set aside.
  • Willful disobedience of court orders is punishable as contempt and cannot be excused by disagreement with the order.

Court orders

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  1. 1.Chaju Builders Limited joined in the suit as a party for the purposes of the application
  2. 2.Declaration that the order of 15th February 2017 setting aside the ex parte judgment of 18th May 2016 also overturned its execution and rendered transactions over Kisumu/Kanyakwar 'B'/396 null and void, restoring the status quo of subdivision into Kisumu/Kanyakwar 'B'/1689-1770
  3. 3.Declaration that the subdivision of the suit property into Kisumu/Kanyakwar 'B'/2732 (further subdivided into subplots 2745, 2746, 2747 and 2748), 2733 and 2734 and subsequent transfers to the Plaintiff and Chaju Builders Limited were null and void
  4. 4.Cancellation of the purported subdivision, transfer and registration in favour of the Plaintiff and Chaju Builders Limited and an order that the Land Registrar Kisumu County rectify and restore the register of Kisumu/Kanyakwar 'B'/1689-1770 in the names of the 3rd and 4th Defendants/registered owners
  5. 5.Costs of the application to the 3rd and 4th Defendants, payable by the Plaintiff and the Interested Party
Jurisdiction invoked
Section 34 of the Civil Procedure Act, Chapter 21 Laws of Kenya

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, "Ojwang v Ghelani & 5 others; Chaju Builders Limited (Interested Party) (Environment and Land Case 232 of 2013) [2025] KEELC 5729 (KLR)", Case Analysis (2025). Notice of Motion dated 16th October 2024 (case number of the suit not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5729/eng@2025-07-31

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