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ELCAllowedELC Civil Suit No. 30 of 2014

Macharia v Muses & 2 others (Environment and Land Case Civil Suit 30 of 2014) [2026] KEELC 4606 (KLR)

Environment and Land Court
16 July 2026
BAB. Akello
1,315 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Mombasa court has finally scheduled the full hearing of a 12-year-old Diani land dispute after the Court of Appeal ordered it back for determination.

What this practically means

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Executive summary

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This is a Ruling of the Environment and Land Court at Mombasa (Akello, J.) on a Notice of Motion dated 11th February 2026 by the 2nd Defendant, Estate Sonrisa Limited, seeking to have its Case Stated dated 5th September 2022 set down for hearing. The dispute over two neighbouring parcels on the Diani coastline, Kwale/Galu/Kinondo/50 and /48, has run twelve years through every tier of the judiciary. By its judgment of 30th January 2026 in Civil Appeal No. E076 of 2023, the Court of Appeal (Murgor, Laibuta & Ngenye-Macharia, JJ.A.) set aside a ruling of the ELC (Matheka, J.) of 21st March 2023 and remitted the Case Stated for hearing and determination on the merits, holding that the ELC was not functus officio and had jurisdiction under Section 86 of the Land Registration Act. The application, brought under Order 11 rule 3(2)(i) of the Civil Procedure Rules, was unopposed, but the Court held that a consent cannot confer jurisdiction. Satisfied that it was under a positive duty to give effect to appellate directions with expedition, and that finality is served by proper determination rather than procedural refusal, the Court allowed the application by consent: it fixed the viva voce hearing of the Case Stated for 5th November 2026 and directed exchange of skeleton submissions of no more than five pages within fourteen days, confined strictly to the issues remitted by the Court of Appeal.

Questions the Court framed

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

  1. 1.Whether the unopposed Notice of Motion dated 11th February 2026 seeking to have the Case Stated dated 5th September 2022 set down for hearing should be allowed
  2. 2.Whether the Court is obliged to give effect to the directions of the Court of Appeal remitting the Case Stated
  3. 3.What should be the mode of hearing of the Case Stated

Key legal issues

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01

Duty to comply with appellate directions on remittal

Holding

The Court is bound to give effect to the Court of Appeal's setting aside of the ruling of 21st March 2023 and remittal of the Case Stated, and to do so expeditiously.

Reasoning

The hierarchy of courts is the architecture of the rule of law. Once a competent superior court pronounces itself, courts below must give that pronouncement effect. A remittal carries, by necessary implication, a duty of expedition under Section 78 of the Civil Procedure Act and Order 42 Rule 32, and the trial court must fulfil, not reargue, the appellate mandate.

p. 2
02

Functus officio and jurisdiction over the Case Stated

Holding

The Court of Appeal has definitively held that this Court was not functus officio in relation to the Case Stated and had jurisdiction under Section 86 of the Land Registration Act; that holding binds the Court.

Reasoning

The Court of Appeal's holding on jurisdiction is binding and it is not open to the trial court to revisit it, and no party invited it to do so. Closure of the litigation can only be achieved by hearing the Case Stated on its merits, not by procedural refusal.

p. 3
03

Mode of hearing of a Case Stated

Holding

Although a Case Stated is by nature a proceeding on agreed or ascertained facts for the opinion of the Court on a point of law, oral evidence was allowed guided by the parties' agreement.

Reasoning

A Case Stated calls for the Court's opinion on a point of law arising from the Land Registrar's statutory function under Sections 79(3A), 80, 86 and 91(9) of the Land Registration Act. Guided by the parties' agreement, viva voce evidence was permitted and a hearing date fixed.

p. 3

Legal principles established

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  • A consent, even a full one, cannot confer jurisdiction the Court does not possess nor legitimize an order the law would not otherwise permit.
  • Courts are under a positive duty to give effect to the directions of a superior court; the judicial hierarchy maintains the rule of law.

Court orders

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  1. 1.The viva voce hearing for the Case Stated dated 5th September 2022 filed by the 2nd Defendant is scheduled for 5th November 2026
  2. 2.Parties to file and exchange written submissions confined to the issues remitted by the Court of Appeal in Civil Appeal No. E076 of 2023
  3. 3.Applicant to file skeleton written submissions not exceeding 5 pages within 14 days of the Ruling, and file an Affidavit of service
  4. 4.Respondents to file and serve skeleton written submissions not exceeding 5 pages within 14 days upon service
  5. 5.The hearing of the Case Stated to proceed strictly within the four corners of the remittal by the Court of Appeal

The bench

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

BA
majority

Wrote the judgment

On appeal from
Court of Appeal, Mombasa
Civil Appeal No. E076 of 2023
Jurisdiction invoked
Court of Appeal's remittal in Civil Appeal No. E076 of 2023; jurisdiction under Section 86 of the Land Registration Act as affirmed by the Court of Appeal

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 the result, and by consent of all parties, the application dated 11th February 2026 is allowed in the following terms:
p. 3disposition - application allowed by consent
For the avoidance of doubt, the hearing of the Case Stated shall proceed strictly within the four corners of the remittal by the Court of Appeal.
p. 3scope of hearing confined to remittal
The viva voce hearing for the Case Stated dated 5th September 2022 filed by the 2nd Defendant in Environment and Land Court Civil Suit No. 30 of 2014 is hereby scheduled for the 5th of November, 2026.
p. 3final orders - hearing date fixed
A consent, even a full one, cannot confer jurisdiction the Court does not possess, nor legitimize an order the law would not otherwise permit.
p. 2jurisdiction and consent orders

Issues in the judgment

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minor

Disposition records costs as provided for in the application, but the operative orders contain no express costs order, leaving the costs position unclear.

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, "Macharia v Muses & 2 others (Environment and Land Case Civil Suit 30 of 2014) [2026] KEELC 4606 (KLR)", Case Analysis (2026). ELC Civil Suit No. 30 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4606/eng@2026-07-16

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