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ELCDismissedELC (OS) E005 OF 2023

Chepkwony v Terer & another (Enviromental and Land Originating Summons 5 of 2023) [2026] KEELC 2849 (KLR)

Environment and Land Court
13 May 2026
1,619 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to reopen a concluded case or add a new party, confirming that once judgment is delivered and appealed, parties must go to the appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (L. Komingoi, J) determines a Notice of Motion dated 19th December 2025 by Samwel Kiplangat Mutai, a proposed interested party, seeking to set aside the judgment delivered on 8th April 2025 in an adverse-possession Originating Summons and to be enjoined as an interested party. The Applicant claimed he had resided on 3½ acres of the suit land since 1997, was never served with the pleadings, and learned of the judgment only through neighbours. The Plaintiff/Respondent opposed, contending that the proceedings had concluded, that the court was functus officio, that post-judgment joinder is legally untenable, that the Applicant lacked locus standi, and that the proper recourse was a separate suit or joinder in the Defendant's pending appeal to the Court of Appeal. The court framed three issues: joinder, setting aside/review, and costs. It held there were no subsisting proceedings into which the Applicant could be joined, that the judgment could not be the subject of both appeal and review, and that the court was functus officio. The Deputy Registrar's site visit of 15th January 2025 had confirmed the Plaintiff's exclusive occupation, discrediting the Applicant's occupation claim. The conditions for review under Order 45 rule 1 were not met. The application was dismissed with costs to the Plaintiff/Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant ought to be joined as an interested party to these proceedings
  2. 2.Whether the judgment delivered on the 8th April 2025 ought to be reviewed and/or set aside
  3. 3.Who should bear costs of the suit

Key legal issues

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01

Whether the court can join an interested party and set aside its judgment after delivery of judgment and initiation of an appeal

Holding

The application fails; the court is functus officio and there are no subsisting proceedings for joinder

Reasoning

Judgment was delivered on 8th April 2025 and the Defendant has preferred an appeal to the Court of Appeal. With no subsisting proceedings, there is no vehicle for joinder, and the judgment cannot be subject of both appeal and review. The Applicant was advised to seek joinder in the appeal under the Court of Appeal Rules. The Deputy Registrar's site visit confirmed the Plaintiff's exclusive occupation, undermining the Applicant's claimed occupation.

p. 8
02

Whether the conditions for review under Order 45 rule 1 were met

Holding

The conditions were not met; setting aside is not the only avenue to ventilate the claim

Reasoning

The court found the Applicant had not demonstrated the prerequisites for review or setting aside under Order 45 rule 1. The Applicant's claimed occupation of 3½ acres was contradicted by the Deputy Registrar's site visit of 15th January 2025, and his photographs did not demonstrate occupation. The court indicated a separate suit might be the proper recourse.

p. 8

Legal principles established

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  • Functus officio prevents a court from reopening a matter after rendering a final decision

Court orders

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  1. 1.The Notice of Motion dated 19th December 2025 is dismissed with costs to the Plaintiff/Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 1A, 1B, 3A & 63(3) of the Civil Procedure Act and Order 51(1), Order 22 Rule 22, Order 10 Rule 11, Order 1 Rule 10 of the Civil Procedure Rules

Relief refused

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Setting aside the judgment dated 8th April 2025

The court is functus officio having delivered final judgment and an appeal has been preferred to the Court of Appeal; the conditions under Order 45 rule 1 were not met

p. 8

Joinder of the Applicant as interested party

There are no subsisting proceedings into which the Applicant could be joined; judgment was delivered and an appeal is pending

p. 7

Costs

The application is dismissed with costs to the Plaintiff/Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion I find no merit on this application and the same is dismissed with costs to the Plaintiff/Respondent.
p. 8Disposition
fuctus official is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon
p. 8Functus officio
The judgment herein cannot be a subject of both appeal and review.
p. 7Appeal and review are mutually exclusive
The Applicant has the option of applying to be enjoined in the said Appeal as an interested party under the Court of Appeal rules.
p. 8Proper forum for joinder after judgment

Issues in the judgment

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minor

Recurring typographical error in 'functus officio' throughout the judgment, including in the quoted passage from Telkom Kenya Ltd Vs John Ochanda

minor

Dates in the record appear internally inconsistent (application dated 19th December 2025 but judgment under challenge delivered 8th April 2025; grounds of opposition dated 7th March 2026), which may reflect clerical errors in the transcription

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, "Chepkwony v Terer & another (Enviromental and Land Originating Summons 5 of 2023) [2026] KEELC 2849 (KLR)", Case Analysis (2026). ELC (OS) E005 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2849/eng@2026-05-13

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