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ELCDismissedMachakos ELC (formerly Milimani CMCC No. 4066 of 2007; Milimani ELC No. 26 of 2011)· [2025] KEELC 6469 (KLR)

Kathia & another (Suing as the Administrators of the Estate of Hellen Muthoni Kathia) v Mutunga & another (Environment and Land Case 143 of 2017) [2025] KEELC 6469 (KLR)

Environment and Land Court
30 September 2025
AKA. Y. Koross
1,363 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reopen its 2007 orders in an 18-year land dispute, confirming that final court decisions cannot be revisited by the same court.

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 Machakos (A. Y. Koross, J) on a notice of motion dated 13/06/2024 by the 1st defendant in a long-running dispute over plot No. 106, Mlolongo Ngwata phase 11A. The suit originated in 2007 as Milimani CMCC No. 4066 of 2007, was transferred to the High Court as Milimani ELC No. 26 of 2011 and later to Machakos ELC. On 3/07/2007 the then court granted the plaintiff injunctive orders restraining the defendants from interfering with the suit property. The 1st defendant sought stay of proceedings and of the 2007 ruling, an account of rental income since 2007, a bar on the plaintiff collecting rent, and deposit of rent into a joint interest-earning account. The plaintiff opposed, citing multiple substitutions of deceased plaintiffs, Covid-19 delays, and asserting no rent was being collected. The court framed two issues: whether it was functus officio, and whether the motion was merited. Applying the Court of Appeal decision in Telkom Kenya Ltd v John Ochanda and the Supreme Court decision in Odinga v IEBC, the court held it was functus officio: the 2007 injunctive orders could not be reopened, stayed or varied by the same court except under Section 99 of the Civil Procedure Act for correction of clerical errors or accidental slips. The reliefs were held to be an abuse of process and unsustainable for want of legal basis. The motion was dismissed with costs to the plaintiff; the court barred further applications and directed compliance with Order 11 with trial bundles to be filed within 60 days, the matter to be mentioned for fixing a hearing date.

Key legal issues

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01

Whether the court is functus officio in respect of the ruling of 3/07/2007 granting injunctive orders

Holding

The court found it is functus officio; the 3/07/2007 injunctive orders were final in nature and cannot be stayed, reopened or varied by the same court except under Section 99 Civil Procedure Act

Reasoning

Applying Telkom Kenya Ltd v John Ochanda and Odinga v IEBC, the court held the functus officio doctrine bars merit-based decisional re-engagement once final judgment and a decree or order issue. The 2007 ruling granted injunctive reliefs restraining the defendants; the motion did not seek correction of any error but a re-opening of the merits, which only an appeal or review could achieve. The plaintiff's counsel added the orders were never vacated.

p. 3
02

Whether the 1st defendant's motion was merited

Holding

The reliefs were unsustainable as no legal basis was proffered, and amounted to an abuse of court process

Reasoning

The court held the reliefs did not seek to correct any error in the 2007 ruling, so the motion was an attempt to relitigate decided matters. On the second limb, no legal basis was advanced for the stays, accounting, rent-barring and joint-account orders sought. The court declined to say more and dismissed the motion.

p. 3

Legal principles established

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  • A court vested with adjudicative powers may generally exercise those powers only once in relation to the same matter; a final decision cannot be revoked or varied by the decision-maker (functus officio), subject to correction of clerical errors under Section 99 of the Civil Procedure Act
  • The statutory exception to functus officio is Section 99 of the Civil Procedure Act permitting correction of clerical or arithmetical mistakes or accidental slips

Court orders

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  1. 1.The notice of motion dated 13/06/2024 is dismissed with costs to the plaintiff
  2. 2.No further applications shall be entertained in this matter
  3. 3.All parties directed to fully comply with Order 11 and file indexed and paginated trial bundles within 60 days
  4. 4.Matter to be mentioned for purposes of fixing a hearing date

Authorities

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Legislation

  • Civil Procedure ActSection 99

Cases cited (5)

  • Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited)
    [2014] KECA 600 (KLR)
  • Chandler v Alberta Association of Architects
    [1989] 2 SCR 848
  • In re St. Nazaire Co.
    (1879), 12 Ch. D. 88
  • Paper Machinery Ltd. v. J.O. Rose Engineering Corp.
    [1934] SCR 186
  • Odinga v Independent Electoral & Boundaries Commission & 3 others
    [2013] KESC 8 (KLR)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the transferred suit (successively CMCC No. 4066 of 2007, Milimani ELC No. 26 of 2011, Machakos ELC)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kathia & another (Suing as the Administrators of the Estate of Hellen Muthoni Kathia) v Mutunga & another (Environment and Land Case 143 of 2017) [2025] KEELC 6469 (KLR)", Case Analysis (2025). Machakos ELC (formerly Milimani CMCC No. 4066 of 2007; Milimani ELC No. 26 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6469/eng@2025-09-30

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