Matulu & another (Suing as Administrators of the Estate of Makuthi Ngovi) v Kariuki & 4 others (Environment and Land Case Civil Suit E015 of 2020) [2025] KEELC 6742 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed defendants' bid to restart a land trial, ruling they must live with the consequences of missing hearings.
What this practically means
#Executive summary
#Key legal issues
#Whether the proceedings of 11/05/2022 and 3/10/2022 breached the constitutional right to fair hearing
No breach arose; the defendants were afforded an opportunity to be heard but failed to attend, so Articles 25(c) and 50(1) were inapplicable and Section 1A of the CPA governs
The defendants had entered appearance, filed a defence and been served with notices; nothing prevented them from attending. Counsel's own affidavit showed awareness that the matter was part-heard, and no explanation for non-attendance on 11/05/2022 and 3/10/2022 was offered. The court found undue delay in filing the motion and prejudice to plaintiffs who were at the tail end of their case, invoking the overriding objective under Section 1A of the Civil Procedure Act.
Whether the plaintiffs' witnesses should be recalled for cross-examination
Relief not merited; no reason was given to justify recall under Section 146(4) of the Evidence Act and Order 18 Rule 10 CPR
Recall and re-opening are matters of judicious discretion governed by the tests in Susan Wavinya Mutavi v Isaac Njoroge: prejudice to the opposite party, gaps in evidence, inordinate delay, diligence, materiality and credibility. The applicants specified no reason whatsoever for the exercise of the discretion in their favour, so the relief failed.
Whether the court is functus officio on extension of time for compliance with pretrial directions
Yes; the court had issued final orders on 16/03/2023 declining further time, and that decision can only be disturbed on appeal
Relying on Telkom Kenya Limited v John Ochanda, the court held that the common law doctrine of functus officio prevents reopening of a matter once final decision is entered and bars merit-based decisional re-engagement. Since Ms Mwikali had made a similar application on 16/03/2023 which was refused with reasons, the motion amounted to an abuse of the court process.
Legal principles established
#- The court's discretion to set aside proceedings is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay
- Once a court has rendered a final decision on an interlocutory compliance issue, the functus officio doctrine bars merit-based re-engagement; the remedy is appeal
- Advocates are recognised agents of their clients; a client is bound by counsel's acts or omissions in the conduct of the case
Court orders
#- 1.The notice of motion dated 13/07/2023 is dismissed with costs to the plaintiffs
- 2.A mention date shall be given for purposes of taking a further hearing date
- Jurisdiction invoked
- Inherent powers of the court under the Civil Procedure Act (motion expressed to be brought under Articles 25(c) and 50(1) of the Constitution of Kenya)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matulu & another (Suing as Administrators of the Estate of Makuthi Ngovi) v Kariuki & 4 others (Environment and Land Case Civil Suit E015 of 2020) [2025] KEELC 6742 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6742/eng@2025-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.