Kimemia Engineering Construction Limited v County Government of Nairobi; Maina (Suing on behalf of Estate of Peter Maina Waigwa - Deceased) & 21 others (Applicant) (Environment and Land Case 114 of 2009) [2025] KEELC 6372 (KLR)

c. That this Honourable Court be pleased to review, vary, discharge and/or set aside its orders made and contained in the Judgment delivered on the 21st March, 2011 and the subsequent decree arising therefrom and direct the same to be heard on merit. d. That this Honourable court be further pleased to consolidate this suit together with ELC Civil suit No. E439 of 2021 and the same be heard together before Hon. Justice Ogutu Mboya currently handling and in conduct of the latter suit that has progressed far e. That the cost of this application be provided for 3. The applicants aver that the suit proceeded in their absence although the applicants were lawful allottees who were on the suit property hence should have been served so as to participate in the hearing. The applicants allege they only became aware of the Judgement in this case when they were served with a statement of defence in ELC E 439 of 2021. They contend that while the Judgement made reference to LR No 209/4844/59/R the decree referred to LR No 209/ 4844/124. The applicants urged the court not to condemn them unheard. Vide a Replying Afidavit dated 29th January, 2024, the Plaintifi deposed that the application is an afterthought and unmerited. That the allotment letters annexed by the Applicants to their afidavits have no connection to the suit property. The Plaintifi further argued that given that the Applicants have sought for cancellation of its title in ELC E 439 of 2021, they would achieve the same result by pursuing their rights in the said suit. 4. Counsel for the Applicants pointed out that although the Plaintifi alleged that it had been on the parcel of land, the record bears witness to the fact that they filed a suit in 2009 which lends credence to their argument that it was them and not the applicant who are allottees of the suit property. Counsel further submitted that the Plaintifi extracted a decree which is at variance with the Judgement of the court and were using this decree to dispossess them of their land. They insist that the Judgement and the decree are at variance. 5. Counsel for the Plaintifi submitted that this court has no jurisdiction to hear this matter as the court is functus oficio and hence the application should be dismissed. 6. In considering the application by the applicants the court will be determine the following issues; a. Whether the applicants have locus standi to be heard in respect of the application b. Whether this court is functus oficio c. Whether the application to review and set aside the decree is merited 7. The Applicants were not parties in this suit neither does their application seek that they be enjoined to the suit which in any event has been concluded. However they have a right to be heard on the application for review which brings to the fore the second issue which is whether the court is functus oficio. 8. In the case of Jersey Evening Post Limited v Al Thani [2002] JLR 542 at 550 the court posited: “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. 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 on adjudication must be taken to a higher court if that right is available.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6372/eng@2025-02-13 2

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9. The doctrine of functus oficio was further considered by the Court of Appeal in Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) [2014] eKLR, where the Court held 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.” 10. 11. It is evident that court cannot reopen a matter that has been concluded save for as shall be provided by the law. The law relating to review is Section 80 of the Civil Procedure Act provides that: - “Any person who considers himself aggrieved(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. Order 45 of the Civil Procedure Rules, Rule 1 further provides that: “1 (1) Any person considering himself aggrieved7 (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other suficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. In exercise of the powers under Section 80 and Order 45 a court can hear an application for review after finalizing a matter. 12. The applicants have asked the court in exercise of its inherent power under section 1A, 1B and 3A of the Civil Procedure Act to review its decision and set aside the Judgement herein. While that suit was pending, the Applicants have filed a suit against the Plaintifi in E439 of 2021. 13. The Applicants did not deem it fit to share with this court the pleadings or even Judgement in E439 of 2021. However, given that this information is available in the case tracking system to which I have access, I have taken liberty to check on the file. The pleadings confirm that they raised all pertinent issues before the court which gave them a chance to tender evidence and made its determination. The Applicants had an opportunity to fully ventilate the issues relating to the suit property. 14. Secondly although they allege there is an error in the decree which has afiected the suit properties they have not demonstrated that the letters of allotment which they claim to have are connected to either LR No 209/4844/59/R or LR No 209/ 4844/124 as the case may be. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6372/eng@2025-02-13 3

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15. It was the responsibility of the applicants to fully present all the facts before the court that would enable the court to exercise its inherent power to do justice in their favour. They have failed to do this. As such I find that the application is not merited and is dismissed with costs. RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS ON 13TH OF FEBRUARY, 2025 JUDY OMANGE JUDGE In the presence of : Court Assistant Merylynn Mr. Nyaga for Applicant holding brief Mr. Karuga for Plaintifi/Respodent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6372/eng@2025-02-13 4

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