Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2025] KEELC 6547 (KLR)

Kombo & 2 others v Uhutta Properties Limited & another; Rahasi & 4 others (Interested Parties); Maisha Mabati Mills Limited (Objector) (Environment and Land Case 89 of 2021) [2025] KEELC 6547 (KLR)

Environment and Land Court of Kenya
30 September 2025
3,530 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court refused to let a property buyer join a concluded land case, ruling the court had no power to reopen a judgment already executed.

What this practically means

#

Executive summary

#
Mabati Rolling Mills Limited, the proposed 3rd Defendant, applied by Notice of Motion dated 5th May 2025 to set aside, vary or quash a judgment delivered on 24th June 2024 together with the resultant decree of 1st July 2024, and to be joined as a substantive 3rd Defendant so the suit could be reheard de novo. It averred that it had purchased the suit properties, Kwale/South Samburu/90 and 112, in 2020 for value and without notice of defect, and only later learned of the judgment cancelling the 1st Defendant's titles. The Plaintiffs opposed, filing a Replying Affidavit and a Notice of Preliminary Objection arguing that the application was overtaken by events since the judgment had been executed on 25th July 2024, and that the court was functus officio. No submissions were filed despite directions, and the court ruled on the record. Framing four issues, the court applied Mukisa Biscuit on preliminary objections, finding the objection a pure point of law. Applying Samuel Kamau Macharia on jurisdiction, Telkom Kenya v John Ochanda and Raila Odinga on functus officio, the court held it had become functus officio after final judgment, that the application was overtaken by execution of the decree, and that the Plaintiff owed no duty to disclose the Applicant's purchase. The preliminary objection was allowed, the application dismissed, with each party bearing their own costs.

Key legal issues

#
01

Whether the preliminary objection on jurisdiction and functus officio was merited

Holding

It was merited: the objection was a pure point of law, the judgment of 24th June 2024 had been executed, and the court was functus officio

Reasoning

The court adopted the Mukisa Biscuit test of a preliminary objection as a pure point of law. It found the objection on jurisdiction passed that test. Since the judgment revoking the 1st Defendant's title had been executed on 25th July 2024 and proprietorship determined, any application to stay or set aside was overtaken by events, and the court, having rendered final judgment, could not reopen the matter.

p. 7
02

Whether the Applicant established grounds to set aside the judgment as one obtained by non-disclosure

Holding

No; it was not the Plaintiff's duty to disclose the Applicant's purchase, and the vendor (1st Defendant) bore responsibility for the non-disclosure

Reasoning

The Applicant alleged the Plaintiff concealed its ownership of the suit properties. The court held it would be absurd to attribute to the Plaintiff a duty to disclose a transaction to which the Plaintiff was not party, when the vendor who conducted the transaction itself failed to disclose it. No mistake or error apparent on the face of the record under Section 80 and Order 45 Rule 1 was established.

p. 7
03

Costs of the application and preliminary objection

Holding

Each party to bear their own costs, as a matter of the court's discretion

Reasoning

While costs normally follow the event under Section 27(1) of the Civil Procedure Act and should compensate rather than punish, the court found it fair and reasonable in the circumstances of this application that each party bear its own costs.

p. 8

Legal principles established

#
  • A preliminary objection must be based on pure points of law, arising from the pleadings, capable of disposing of the suit, and cannot succeed if any fact has to be ascertained or if judicial discretion is sought
  • Once a court delivers final judgment and that judgment is executed, the court becomes functus officio and cannot reopen the matter to admit a new party
  • A review on account of error apparent on the face of the record requires an error that is self-evident and does not require elaborate argument

Court orders

#
  1. 1.The Notice of Preliminary Objection dated 4th June 2025 by the Plaintiffs is found to have merit and is allowed
  2. 2.The Notice of Motion application dated 5th May 2025 by the proposed 3rd Defendant/Applicant is found to be unmeritorious as this Court has already become 'Functus Officio' in the given circumstances and is dismissed
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Articles 40, 48 & 50 of the Constitution of Kenya 2010; Sections 1A, 1B & 3A of the Civil Procedure Act, Cap. 21; Sections 3 & 13 of the Environment and Land Court Act, No. 19 of 2011; Order 1 Rule 10(2) and Order 51 Rule 1 of the Civil Procedure Rules 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kombo & 2 others v Uhutta Properties Limited & another; Rahasi & 4 others (Interested Parties); Maisha Mabati Mills Limited (Objector) (Environment and Land Case 89 of 2021) [2025] KEELC 6547 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6547/eng@2025-09-30

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