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ELCDismissedNyamira ELC Case (Plaint dated 1st April 2022)· [2025] KEELC 6952 (KLR)

Ngare v Ogamba (Environment and Land Case E001 of 2022) [2025] KEELC 6952 (KLR)

Environment and Land Court
15 October 2025
3,006 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Nyamira Environment and Land Court refused to issue a title deed the parties wanted because it had already finished the case — the proper route was appeal.

What this practically means

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Executive summary

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This ruling by D. O. Ohungo, J. of the Environment and Land Court at Nyamira, delivered on 15th October 2025, determined the Defendant's Notice of Motion dated 6th May 2025. The Defendant sought orders that the Deputy Registrar execute discharge, subdivision, transfer and conveyancing documents in respect of Matutu Settlement Scheme/641, and that the Land Registrar Nyamira County register the discharge, subdivision and transfer and issue a title deed for the 8 acres awarded to him in the judgment of 15th February 2024 by Mugo Kamau, J., which dismissed the Plaintiff's suit and allowed his counterclaim. The Defendant argued the bank was uncooperative, stay conditions had not been met, and invoked the maxim ubi jus ibi remedium. The Plaintiff opposed, contending the court lacked jurisdiction to subdivide land registered in the name of a deceased person, that only the Succession Court could do so, and that neither the chargee bank nor the Land Registrar were parties. The court held it was functus officio: the judgment and decree, now on appeal in the Court of Appeal (Civil Appeal No. E281 of 2024), did not include the relief sought, which should have been pleaded from the onset. Relying on the audi alteram partem rule as discussed by the Supreme Court in Kidero v Waititu, the court further held it could not grant orders directly affecting the chargee bank without hearing it, citing also Ambuti Adega v Kibos Distillers on jurisdiction and Raila Odinga v IEBC on functus officio. The application was dismissed with costs to the Plaintiff, and the parties were urged to expeditiously prosecute the pending appeal.

Key legal issues

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01

Whether the court, post-judgment, could order execution of conveyancing documents and registration effects not contemplated in the decree

Holding

No. The court was functus officio and lacked jurisdiction to grant relief not pleaded or included in the decree

Reasoning

The judgment and decree on record, now subject to appeal, did not include the kind of relief sought. If such relief was needed, the parties should have pleaded it at the outset. Jurisdiction cannot be conferred by consent, and the court cannot alter the judgment and decree in the manner sought, particularly where the chargee bank would be affected without being heard.

p. 5
02

Whether orders affecting the chargee bank could issue without the bank being heard

Holding

No. The audi alteram partem rule precluded granting orders directly affecting the bank, which did not participate in the hearing

Reasoning

The orders sought would directly affect the bank as chargee, whose joinder application had been dismissed. Empowering the Deputy Registrar and Land Registrar to discharge the charged property without hearing the bank would breach the fair-hearing rule discussed by the Supreme Court in Kidero v Waititu.

p. 5

Legal principles established

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  • A court that has delivered judgment and issued a decree is functus officio and cannot vary or add to the relief granted; challenges must be taken on appeal
  • Jurisdiction cannot be conferred by consent of the parties or by drafting innovation; a determination made without jurisdiction is a nullity

Court orders

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  1. 1.Notice of Motion dated 6th May 2025 dismissed with costs to the Plaintiff
  2. 2.Parties directed to expeditiously prosecute the appeal pending in the Court of Appeal

Authorities

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Legislation

  • Civil Procedure ActSection 98

Cases cited (6)

  • Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others
    [2014] eKLR
  • Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others
    [2020] eKLR
  • Raila Odinga & Others v IEBC & Others
    [2013] eKLR
  • Jersey Evening Post Limited v A1 Thani
    [2002] JLR 542
  • Indru Ramchand Bharvani & Others v Union of India & Others
    1988 SCR Supl. (1) 544
  • Bal Kissen Kejriwal v Collector of Customs, Calcutta & Others
    AIR 1962 Cal. 460
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) — matter arising from execution of decree in an ELC suit; jurisdiction limits discussed vis-à-vis functus officio

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, "Ngare v Ogamba (Environment and Land Case E001 of 2022) [2025] KEELC 6952 (KLR)", Case Analysis (2025). Nyamira ELC Case (Plaint dated 1st April 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6952/eng@2025-10-15

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