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ELCDismissedNot stated in the judgment (suit filed in 2009)· [2025] KEELC 6372 (KLR)

Kimemia Engineering Construction Limited v County Government of Nairobi; Maina (Suing on behalf of Estate of Peter Maina Waigwa - Deceased) & 21 others (Applicant) (Environment and Land Case 114 of 2009) [2025] KEELC 6372 (KLR)

Environment and Land Court
13 February 2025
1,423 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed non-parties' bid to reopen a 2011 land judgment, confirming that review is possible after finality but only with solid proof.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (Judy Omange J, delivered 13 February 2025) determines an application by three non-parties seeking review, variation, discharge or setting aside of a judgment delivered on 21 March 2011 by Muchelule J, in which the Plaintiff was granted vacant possession of LR No 209/4844/59/R and Kshs 100,000 general damages, together with an order consolidating the suit with ELC Civil Suit No. E439 of 2021. The Applicants, claiming to be lawful allottees on the suit property, alleged they were never served and only learnt of the judgment when served with a statement of defence in ELC E439 of 2021, and further that the extracted decree referred to a different parcel (LR No 209/4844/124). The Plaintiff opposed the application as an afterthought and argued the court was functus officio. The court framed three issues: the applicants' locus standi, whether the court was functus officio, and whether review was merited. It found the applicants had a right to be heard on review despite not being parties; that while functus officio bars reopening concluded matters, Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules permit review; and that on the merits the applicants failed to demonstrate that their allotment letters related to either parcel and had already ventilated the issues in E439 of 2021. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Locus standi of non-parties to apply for review

Holding

The applicants, though not parties to the concluded suit, had a right to be heard on the application for review

Reasoning

The applicants were not parties to the original suit and their application did not seek joinder in the concluded suit. However, the court found that as persons aggrieved by the decree, they had a right to be heard on the review application, which took the court to the functus officio question.

p. 2
02

Whether the court is functus officio

Holding

The court is functus officio after judgment, but review under Section 80 and Order 45 remains an exception permitted by law

Reasoning

Relying on Jersey Evening Post Ltd v Al Thani and Telkom Kenya Ltd v John Ochanda, the court held that functus officio provides finality but does not bar a review application brought under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, which a court can hear after finalizing a matter.

p. 3
03

Whether review of the 2011 judgment and decree was merited

Holding

Not merited; applicants failed to show error or connection to the suit property

Reasoning

The applicants alleged a discrepancy between the judgment (LR No 209/4844/59/R) and the decree (LR No 209/4844/124) but did not demonstrate that their allotment letters connected to either parcel. They had already ventilated all pertinent issues in ELC E439 of 2021, and failed to present all facts necessary for the court to exercise its inherent power in their favour.

p. 3

Legal principles established

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  • A court is functus officio only once its judgment or order has been perfected; the doctrine does not prevent correction of clerical errors, and review remains available under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules even after a matter is finalized
  • An applicant seeking review must present all facts demonstrating entitlement to relief, including proof of connection to the property in issue

Court orders

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  1. 1.The applicants' application dated 15th January 2023 seeking review, variation, discharge or setting aside of the judgment of 21st March 2011 and the subsequent decree is dismissed with costs
Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (inherent power and review jurisdiction)

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, "Kimemia Engineering Construction Limited v County Government of Nairobi; Maina (Suing on behalf of Estate of Peter Maina Waigwa - Deceased) & 21 others (Applicant) (Environment and Land Case 114 of 2009) [2025] KEELC 6372 (KLR)", Case Analysis (2025). Not stated in the judgment (suit filed in 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6372/eng@2025-02-13

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