Chepkwony v Terer & another (Enviromental and Land Originating Summons 5 of 2023) [2026] KEELC 2849 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant ought to be joined as an interested party to these proceedings
- 2.Whether the judgment delivered on the 8th April 2025 ought to be reviewed and/or set aside
- 3.Who should bear costs of the suit
Key legal issues
#Whether the court can join an interested party and set aside its judgment after delivery of judgment and initiation of an appeal
The application fails; the court is functus officio and there are no subsisting proceedings for joinder
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.
Whether the conditions for review under Order 45 rule 1 were met
The conditions were not met; setting aside is not the only avenue to ventilate the claim
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.
Legal principles established
#- Functus officio prevents a court from reopening a matter after rendering a final decision
Court orders
#- 1.The Notice of Motion dated 19th December 2025 is dismissed with costs to the Plaintiff/Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Costs
The application is dismissed with costs to the Plaintiff/Respondent
Quotable passages
#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.
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
The judgment herein cannot be a subject of both appeal and review.
The Applicant has the option of applying to be enjoined in the said Appeal as an interested party under the Court of Appeal rules.
Issues in the judgment
#Recurring typographical error in 'functus officio' throughout the judgment, including in the quoted passage from Telkom Kenya Ltd Vs John Ochanda
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.