Kariuki & another v Mugo (Environment and Land Case 35 of 2023) [2025] KEELC 5680 (KLR)

6. The Plaintifis herein, the Respondents in the Court of Appeal have already executed the said judgment/Decree by way of processing several Titles in their names which the Applicant came to learn much later. According to the Applicant, this made the Application filed by him for stay of execution to be overtaken by events and eventually the Applicant had to withdraw the said Application. The same was dated 2/4/2025. 7. The Applicant pleads that his delay in filing the Application for stay of execution was occasioned by the lack of the court file which by now was in the typing pool for the preparation of the proceedings and Judgment and could therefore not be accessed for purposes of filing the now withdrawn Application. 8. The Applicant claims that the new Titles are likely to be further sub-divided, sold, transferred, charged or mortgaged and the same would defeat the pending Appeal. 9. The Respondents on the other hand filed grounds of opposition dated 24/6/2025 where they contend that the Applicant’s Application is misconceived, incompetent, bad in law, an abuse of the Court process, untenable, fatally and incurably defective, frivolous, vexatious and is without merit and that the same should be dismissed with costs. 10. I did allow the parties to file written submissions which they did. What was the judgment of this court? 11. The 2 Respondents herein had sought Judgment in 2 separate suits against the Applicant herein for adverse possession in Nyeri High Court Civil Suit No 62 of 2005 ( O.S) and Nyeri High Court Civil Suit No. 63 of 2005 ( O.S) respectively. 12. The two cases were transferred to High Court, Nakuru before finding their way to E.L.C Nyahururu and ultimately in this Court. 13. The Defendant/Applicant equally filed counterclaims alongside his respective Defences against the 2nd Plaintifi as follows:a. A declaration that the sale transaction between the 2nd Defendant and Samuel Karaho Mugo was unlawful, fraudulent, null and void ab initio. b. A declaration that the 2nd Defendant has not acquired adverse possession over a portion of 1.5 Acres in L.R Nyandarua/Simbara/236 and the Plaintifi’s title thereto has not been extinguished. c. A declaration that the 2nd Defendant was permitted to occupy a portion of 1.5 Acres by the Plaintifi in L.R Nyandarua/Simbara/236. d. An order of eviction of the 2nd Defendant and his entire family from the portion of 1.5 Acres that he occupies and/or uses in L.R Nyandarua/Simbara/236. e. A permanent injunction restraining the 2nd Defendant , his family, kin , agents, employees. Servants or anyone claiming under them from trespassing upon , claiming , subdividing, transferring, renting, leasing cultivating, selling disposing ofi, charging, alienating or in any other manner interfering with the Plaintifi’s quiet possession and ownership of L.R Nyandarua/Simbara/236. f. Mesne profits from 12.08.2005 the date of filing this suit. g. General damages for trespass. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5680/eng@2025-07-31 2

page 2 of 6

h. Costs of the suit with interest. i. Any other relief that this Honourable Court may deem just and fair to order. And also against the 1st Plaintifi in the same terms word for word. 14. And the Plaintifis did file their Replies to Defence. After the pre-trial conference, the case kicked ofi for hearing. 15. The Trial Judge considered the materials and evidence on record. The Court was impressed with the evidence of the Plaintifi and found the evidence of the Defendant not credible. 16. Finally, the Honourable Mr. Justice Y. A. Angima pronounced the following Judgment in favour of the Plaintifis. a. A declaration is hereby made that the 1st Plaintifi, Peter Wakiama Kariuki has become entitled to be registered as proprietor of a portion of 3.45 Acres out of Title No Nyandarua/ Simbara/236 by virtue of the doctrine of adverse possession. b. The Defendant is hereby directed to excise and transfer the said portion of 3.45 Acres out of Title No Nyandarua/Simbara/236 to the 1st Plaintifi within 30 days from the date hereof in default which the Deputy Registrar of the Court shall sign all the necessary forms, documents and instruments to facilitate the sub-division and transfer of the said portion of land to the 1st Plaintifi, Peter Wakiam Kariuki. c. A declaration is hereby made that the 2nd Plaintifi. Tarashisio Ndirangu Thuita, has become entitled to be registered as the proprietor of a portion of 1.5 Acres out of Title No Nyandarua/ Simbara/236 by virtue of the doctrine of adverse possession. d. The defendant is hereby directed to excise and transfer the said portion of 1.5 Acres out of Nyandarua/Simbara/236 to the 1ST Plaintifi within 30 days from the date hereof in default of which the Deputy Registrar of the Court shall sign all the necessary forms, documents and instruments to facilitate the sub-division and transfer of the said portion of land to Tarashisio Ndirangu Thuita. e. The Defendants counterclaim in the consolidated suits are hereby dismissed. f. The 1st and 2nd Plaintifis are hereby awarded costs of the suit and counterclaim. 17. It is out of this Judgment that an Appeal has been preferred and in the pendency of the said Judgment the orders herein are sought. 18. The doctrine of functus oficio is a very important concept in bringing matters to an end. Has this Court’s role become wholly redundant, and it may no longer entertain the relevant question before it? 19. This court determined this matter with finality through its Judgment delivered on 21/11/2024 and it is thus restrained by the doctrine of functus oficio from re-opening and re-hearing the same. 20. The concept of functus oficio has its roots in English law and has evolved through centuries. The doctrine was firmly established by the Judicature Act of 1873, which fused common law and equity jurisdictions in England. The Acts promoted the idea of finality in judicial Decisions, prohibiting courts from revisiting Decisions unless under exceptional circumstances. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5680/eng@2025-07-31 3

page 3 of 6

21. The fundamental reason behind the principle of functus oficio is to ensure finality in legal decisions. If courts or tribunals were permitted to revisit their decisions at any time, it would lead to prolonged litigation, erode trust in the judicial process, and prevent closure for the parties involved. 22. Some of the key purposes and advantages of the doctrine are as follows: 1. Promoting Legal Certainty: Litigants, after a decision is rendered, can move forward with confidence, knowing that their matter has been conclusively settled. 23. 2. Judicial Eficiency: This doctrine prevents courts from being bogged down by repeated hearings of the same matter, allowing them to focus on new and ongoing cases. 3. Fairness: Once a decision is rendered, the parties involved are entitled to appeal to a higher forum rather than continually reopening the case. This ensures procedural fairness and prevents abuse of the legal system. The principle of functus oficio was aptly reiterated by the Court of Appeal in the case of Telkom Kenya Limited v John Ochanda (Suing on His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR that: Functus oficio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognized in the common law tradition from as long ago as the latter part of the 19th Century. In the Canadian case of Chandler v Alberta Association of Architects [1989] 2 S.C.R. 848, Sopinka J. traced the origins of the doctrines as follows (at p. 860); “The general rule that a final decision of a court cannot be re-opened derives from the Decision of the English Court of Appeal in re St. Nazaire Co., (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division.” 24. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 in which the learned author stated; “The functus oficio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.” 25. This principle has been aptly summarized further in Jersey Evening Post Ltd v. Ai Thani [2002] JLR 542 at 550: “A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus when its judgment or order has been perfected. (Emphasis mine). The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its Decision; Any challenge to its ruling or adjudication must be taken to a higher court if that right is available.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5680/eng@2025-07-31 4

page 4 of 6

26. The Applicant is seeking some stop gap measures before the Decree of this court delivered on 21/11/2024 is subjected to Appeal. It is thus clear that he is not seeking a re-engagement of the Court with its earlier Decision. A court does not become functus oficio merely because it has delivered a final decision in civil proceedings. The court retains its power to undertake several actions including but not limited to stay, review, execution proceedings and such other acts and steps towards the closure of the file. In Leisure Lodge Ltd v Japhet Asige and another (2018) eKLR the court said and held: “On the question that this court is functus oficio, I do find that a trial court retains the duty and jurisdiction to undertake and handle all incidental proceedings even after a final judgment is delivered provided such proceedings do not amount to re-trying the cause but geared towards bringing the litigation to an end. That is the reason, the court must undertake settlement of a Decree, if parties cannot agree, handle applications for stay, review, setting aside and even execution proceedings including Applications under Section 94 of the Act.” 27. In the Supreme Court of Kenya, Petition No. 7 of 2019 #Between# 1. Geofirey M. Asanyo Lenaola, SCJJ) held that: The Origins of the Functus officio Doctrine, with Special Reference to its Application in Administrative Law”, in South African Law Journal, Vol. 122 (2005), at p. 832, in the following terms: “The functus oficio Doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter ………………. The [principle] is that once such a decision has been taken, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decisionmaker.” In determining whether the Appellate Court was functus oficio, we need to ask ourselves whether that Court resolved the matter before it with finality……………………………………..” 28. However it is not within the powers of this Court to halt the process of execution of its own Decree once the execution has gone this far and the properties have changed hands. 29. In the case of Telkom Kenya Ltd v John Ochanda, Court of C.A No 60 of 2013 ( Nairobi) the Court of Appeal held that ... “........The doctrine is not to be understood to bear any engagement by a Court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once filed Judgment has been entered and a Decree thereon issued.....” 30. In Jersey Evening Post Cd -v- Al Thani ( 2002) jlr 542 AT 550 the Supreme Court observed:“.......Proceedings are only fully concluded and the Court is functus when its Judgment or Order has been perfected. The purpose of the doctrine is to provide finality......” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5680/eng@2025-07-31 5

page 5 of 6

31. In fact, in my view, the Applicant should have requested for the file from the typing pool since it was being typed on his instruction. This would have enabled him to file the Application before returning the file for further typing of the proceedings. 32. The Civil Procedure Rules talk of Stay of Execution on the available step gap measure between the passing of the Decree and the Appeal. It is too late and any other order granted now in another name will be ............to reopening the case. 33. I therefore order that the Application dated 16/6/2025 concerning Nyandarua/Simbara/1503 and 1504 be dismissed with costs. RULING READ AND DELIVERED IN NYANDARUA THIS 31ST DAY OF JULY 2025. MUGO KAMAU JUDGE In the Presence of: Court Assistant: Samson .............................................for Plaintifi ..............................................for Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5680/eng@2025-07-31 6

page 6 of 6