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ELCPartially Allowed· [2026] KEELC 287 (KLR)

Lakeview Investments Limited & another v Ndege & 3 others (Environment and Land Case 211 of 2011 & 156 of 2018 (Consolidated)) [2026] KEELC 287 (KLR)

Environment and Land Court
28 January 2026
1,191 words in judgment
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The bottom line

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Once a Kenyan court delivers final judgment, it cannot reopen the case—dissatisfied non-parties must appeal instead of asking the same court to restart.

What this practically means

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Executive summary

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The 3rd Defendant/Respondent raised a preliminary objection against an application by the Proposed Interested Parties seeking to be enjoined in a concluded suit, to have the entire suit set aside and the matter heard afresh. The objection raised four grounds: that the court was functus officio and without jurisdiction; that the file was closed upon delivery of judgment on 27th March 2025 (by Justice Christine Ochieng); that the Applicants were not parties to the suit; and that Order 1 of the Civil Procedure Rules does not recognise interested parties in civil litigation. The court applied the Mukisa Biscuits definition of a preliminary objection as a pure point of law, as restated in Attorney General v Andrew Mwaura Githinji, and held the objection properly before it. Relying on the Court of Appeal's exposition of the functus officio doctrine in Telkom Kenya Ltd v John Ochanda and the Supreme Court's approval in Raila Odinga of Pretorius' article, the court held that once final judgment is entered the court cannot revisit the matter on a merit-based re-engagement. Section 99 of the Civil Procedure Act, permitting correction of clerical mistakes, offered no avenue for the relief sought. The court held that the Applicants' proper remedy was an appeal, and that asking it to set aside the entire trial was an abuse of process. The preliminary objection was upheld, the application was struck out with costs to the 3rd Defendant/Respondent, and it was so ordered on 28th January 2026 at Machakos.

Key legal issues

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01

Functus officio after final judgment

Holding

Having delivered final judgment on 27th March 2025, the court lacked competence to entertain the application for joinder and setting aside of the suit.

Reasoning

The court relied on Telkom Kenya Ltd v John Ochanda on the enduring principle of functus officio, and the Supreme Court's approval in Raila Odinga of Pretorius' exposition of the doctrine as one of finality. Section 99 of the Civil Procedure Act permits only correction of clerical or arithmetical mistakes, which does not extend to re-opening the suit on the merits. The proper route for the dissatisfied Applicants was an appeal.

p. 3
02

Definition and proper scope of a preliminary objection

Holding

The objection was a pure point of law properly brought before the court.

Reasoning

The court applied the Mukisa Biscuits test, as restated in Attorney General v Andrew Mwaura Githinji, that a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or discretion exercised. The functus officio issue required no ascertainment of facts, so the objection was properly raised.

p. 2

Legal principles established

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  • Once final judgment has been entered, the functus officio doctrine bars a court from revisiting the matter on a merit-based re-engagement.
  • A preliminary objection may be raised at any time before the final conclusion of the case.
  • A party who was not enjoined in a concluded suit should appeal the judgment rather than seek to re-open the trial.

Court orders

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  1. 1.The preliminary objection is upheld on the ground that the court is functus officio
  2. 2.The Applicants' application dated 17th June 2025 is struck out
  3. 3.Costs of the application awarded to the 3rd Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 99
  • Civil Procedure RulesOrder 1

Cases cited (4)

  • Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Attorney General & Another vs Andrew Mwaura Githinji & another
    (2016) eKLR
  • Telkom Kenya Ltd vs John Ochanda (suing on his behalf and on behalf of 996 former Employees of Telkom Kenya Ltd
    supra
  • Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others
    (2013) eKLR
Jurisdiction invoked
Original civil jurisdiction; Civil Procedure Act and Civil Procedure Rules, Order 1 (court exercising first-instance jurisdiction over an application for joinder of interested parties)

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, "Lakeview Investments Limited & another v Ndege & 3 others (Environment and Land Case 211 of 2011 & 156 of 2018 (Consolidated)) [2026] KEELC 287 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/287/eng@2026-01-28

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