Samwel Nyabichere Muchomerson v Daniel Sereria Makara & 7 others
The bottom line
#A Kenyan court cancelled land titles created in defiance of its orders, convicted two men of contempt, but refused to reopen the original judgment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court is functus officio in respect of the reliefs sought
- 2.Whether the Applicant is entitled to leave to change advocates under Order 9 Rule 9 of the Civil Procedure Rules
- 3.Whether the Applicant may reopen the question of correction of the judgment and decree under section 99 of the Civil Procedure Act
- 4.Whether the proposed additional parties should be joined
- 5.Whether contempt has been established against any of the alleged contemnors
- 6.Whether the Court can grant orders declaring the subsequent subdivisions and transfers null and void and directing rectification of the register
- 7.Whether the Land Registrar should be directed to produce the documents sought
- 8.Whether preservatory, inhibitory and police enforcement orders should issue
- 9.What orders to issue as to costs and the contempt established
Key legal issues
#Functus officio
The doctrine does not bar all post-judgment applications; the court retains limited residual jurisdiction, and functus officio applies only to prayers inviting reconsideration of determined matters
The doctrine serves finality in litigation, but a court retains power to correct clerical errors under section 99, enforce its orders and make preservatory orders. Each prayer must be assessed by its nature; prayers revisiting decided questions are barred, ancillary and preservatory ones are not.
Correction of judgment and decree under section 99
Refused; the parcel-number discrepancy is not a clerical slip and the identical relief was already determined in the ruling of 28th September 2021
Identifying the intended parcel among references to 136, 823, 825 and 852 would require re-examining pleadings, evidence and judgment afresh. Res judicata under section 7 also bars relitigation of the correction question previously determined.
Contempt against the 1st and 4th Respondents
Established to the heightened civil standard; they subdivided parcel 852 on 3rd September 2024 while the status quo order of 30th June 2022 subsisted, with knowledge of it
The order was clear, specific and binding on parties who participated in the proceedings that produced it. Their admitted subdivision and sale of the resultant parcels, after irregular lifting of prohibitions, was wilful disobedience. Absence of a security deposit did not entitle them to deal with the land.
Nullity of pendente lite subdivisions and rectification under section 80 LRA
Subdivision and resultant titles declared null and void ab initio; register to be rectified and restored, subject to the pending appeals
Dealings in breach of a subsisting order cannot confer lawful interests; the doctrine of lis pendens also defeats alienations during litigation. The 5th and 6th Respondents failed as innocent purchasers for want of due diligence and registration in breach of an existing order.
Change of advocate under Order 9 Rule 9
Leave granted despite the procedural irregularity of filing the substantive Motion before obtaining leave, since no objection was taken and no prejudice suffered
The rule requires leave after judgment; the allegation that the new advocate is the Applicant's son was rebutted on unrebutted oath and would not, without more, bar a change. Article 159(2)(d) counsels against penalising the technicality absent opposition or prejudice.
Legal principles established
#- A court after final judgment retains limited residual jurisdiction to correct clerical errors, enforce subsisting orders and make genuinely consequential and preservatory orders, without reopening the merits
- Section 99 correction is confined to clerical or arithmetical mistakes and cannot be used to reopen a substantive issue already determined
- Joinder under Order 1 Rule 10(2) is available only where proceedings are still pending, not after judgment
- Elements and standard of proof in civil contempt
- Titles created in breach of a subsisting court order are null and void and registration does not validate them
Court orders
#- 1.Leave granted for Sarara & Co. Advocates to come on record for the Applicant in place of Kerario Marwa & Co. Advocates
- 2.Prayer for correction of the judgment and decree to reflect Bukira/Bwisaboka/852 declined
- 3.Prayer for joinder of the Land Registrar, Attorney General, 5th and 6th Respondents declined
- 4.Finding of contempt and conviction of the 1st and 4th Respondents for wilful breach of the status quo order of 30th June 2022
- 5.Prayer for contempt against the 5th, 6th, 7th and 8th Respondents dismissed
- 6.Subdivision of Bukira/Bwisaboka/852 and all resultant titles and dealings declared null and void ab initio
- 7.Land Registrar, Kehancha Registry directed to cancel the resultant titles and restore the register to give effect to the Judgment and Decree of 28th July 2020, subject to any contrary order in the pending appeals
- 8.Persons who entered or acquired possession pursuant to the impugned subdivision directed to vacate forthwith
- 9.1st and 4th Respondents ordered, within 14 days, to file affidavits on steps to purge contempt, restore the status quo as to occupation of the 5 acres, cause cancellation of the subdivisions and revert title to Bukira/Bwisaboka/852, and serve the extracted directions on the Land Registrar, Kuria Sub County
- 10.Matter to be placed before the Court on 8th October 2026 for sentencing in default of compliance
- 11.Prayer for production of registry documents declined; prayer for police enforcement declined
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 40, 48, 50 and 159 of the Constitution; sections 1A, 1B and 3A of the Civil Procedure Act; section 29 of the Environment and Land Court Act; sections 68, 76 and 80 of the Land Registration Act; Orders 9, 40 and 51 of the Civil Procedure Rules
Relief refused
#Correction of the judgment and decree to reflect parcel 852
The same application had been determined on 28th September 2021; correction would require re-examining the substance of the judgment, not a clerical slip
Joinder of the Land Registrar, Attorney General, 5th and 6th Respondents
No subsisting proceedings for joinder; suit was heard and determined in 2020
Contempt findings against the 5th, 6th, 7th and 8th Respondents
They were not parties to the proceedings that generated the order of 30th June 2022 and were not properly joined
Order compelling the Land Registrar to produce registry documents
Overly broad and a fishing expedition; suit no longer alive
Police enforcement and omnibus enforcement orders
Enforcement must follow prescribed procedure; contempt process cannot aid a civil remedy where another method of doing justice exists
Leave to institute contempt proceedings (Prayer D)
No basis found for the prayer
Costs
The Applicant's costs of the Motion against the 1st and 4th Respondents to be borne by those Respondents jointly and severally; the 5th, 6th, 7th and 8th Respondents to bear their own costs.
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.
The court retain a limited jurisdiction to correct clerical errors within the confines of section 99 of the Civil Procedure Act, to enforce subsisting orders, or to make genuinely consequential and preservatory orders in the interest of justice of the case, which do not amount to reopening the merits of the dispute.
The limited residual jurisdiction to correct an accidental slip cannot be used to reopen a substantive issue already determined by the Court.
I am satisfied to the requisite standard that the 1st and 4th Respondents knowingly and wilfully breached that order.
They bought the parcels against the doctrine of lis pendens, and worse still contrary to a existing court order.
The Land Registrar, Kehancha Registry, is hereby directed to cancel the resultant titles and restore the register to the position necessary to give full effect to the Judgment and Decree of 28th July 2020, together with the orders subsequently issued by this Court, subject to any contrary order in the pending appeals.
they are ordered to restore the status quo, in terms of occupation of the suit land (being the 5 acres that the Court had found to be adversely held by the Plaintiff), as it was before their invasion of the parts which had been fenced for and in favour of the Applicant
The subsequent registration does not validate a transaction undertaken in defiance of a subsisting court order.
Issues in the judgment
#Motion repeatedly misdescribes parcel 16057 as '6057', corrected by the court as a typographical omission
Judgment of 28th July 2020 internally inconsistent on parcel number (136, 823, 825, 852)
Ruling cites 'Cecil Miller v Jackson [2017] KEHC 1499 (KLR). Njeru & Another' – garbled case name/citation
Blank paragraph 107 in the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samwel Nyabichere Muchomerson v Daniel Sereria Makara & 7 others", Case Analysis (2026). Environment and Land Case (O.S.) No. 6 of 2019 (Ruling on Notice of Motion dated 18th September 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5805/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.