Mukundi v Muchiri

on 4th March, 2026 the Court ordered him to apply to the County Surveyor for a joint boundary reestablishment of Plot No. C348 Wang’uru Market, vis-à-vis adjoining plots, and to le the Surveyor’s report in the trial court within four (4) months; that his advocate applied to the County Surveyor on 12th March, 2026, but the County Surveyor responded that he could not comply within the ordered time because he was already engaged on priority survey work for the County Industrial Park at Sagana; that the work is now complete and he has started preparing for the court-ordered exercise, and has requested for an extension of 2 to 3 months; that the Court should therefore extend time for the Surveyor to carry out the exercise, le the report, and for the subsequent mention before the trial court, so that the Court’s judgment can be properly implemented. 3. The application is opposed by the appellant through his grounds of opposition dated 7th July, 2026, that: a. The Application is frivolous. vexatious and an abuse of the court process b. The Application discloses no reasonable grounds for the extension of time, which will translate into review/Amendment of the Judgment of the Honourable court delivered on 4.3.2026 unprocedurally. c. The Judgment of the Honourable Appellate Court delivered on 4.3.2026 is nal in absence of any Appeal and/or Review, and the Honourable Court is functus ocio and hence lacks the requisite Jurisdiction to entertain the Application dated 18.6.2026. d. The orders sought for in the Application dated 18.6.2026 are not tenable or available to the Applicant in view of the Honourable Court being Functus Ocio and the Appellant prays that the entire Application dated 18.6.2026 be dismissed with costs. 4. When the application came up for hearing, the learned counsel for the parties asked the court to proceed and prepare a ruling based on material presented. 5. The issues arising for the court’s determination are as follows: 6. a) Whether the court functus ocio in light of the prayers sought in the application, the circumstances, and its judgment of 4th March, 2026. b) Whether the application is frivolous, vexatious and an abuse of the court process. c) Whether the application amount to review of the court’s judgment. d) Whether the applicant has made out a reasonable case for extension of time for the activities stated. e) Whether the application before court falls within the connes of this court’s judgment delivered on the 4th March, 2026. f) Are grounds of opposition a proper response to facts presented by adavit? g) Is the application merited taking the totality of the above into account? h) Who bares the costs of this application? The court has carefully considered the grounds on the application, grounds of opposition, adavit evidence and come to the following ndings: a) The judgment of 4th March, 2026 expressly reserved liberty to apply for enlargement of the timelines for the County Surveyor’s report. The Respondent commenced compliance with https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5558/eng@2026-09-23 2

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the rst directive by applying to the County Surveyor on 12th March, 2026. The Surveyor’s unrebutted written explanation attributes the delay to prior ocial work. An application that invokes an express liberty to apply contained in the judgment, supported by a concrete explanation from the ocer charged with performance, is neither frivolous nor an abuse of process. Bare assertions to the contrary, without factual foundation, cannot succeed. b) The application does not seek to vary, set aside or revisit any substantive nding in the judgment or decree. It seeks only enlargement of time for the steps that the judgment itself left open to extension. Extension of time, for compliance with a procedural direction that the Court expressly reserved power to enlarge, is not a review under Order 45 of the Civil Procedure Rules. It is implementation of the judgment on its own terms. Section 95 of the Civil Procedure Act expressly empowers the Court, in its discretion, to enlarge any period xed or granted by it for the doing of any act, even after the original period has expired. It provides that; “ Where any period is xed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally xed or granted may have expired.” c) The doctrine of functus ocio prevents merit-based re-engagement with a case once nal judgment has been entered, and the decree perfected. The doctrine does not bar incidental or consequential proceedings geared towards bringing the litigation to an end, or ensuring the Court’s own orders are eectuated. In the case of Telkom Kenya Limited versus John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR it was held that: “ 25. 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 nality. Once proceedings are nally 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.” (Emphasis added). See also the decision in the case of Leisure Lodge Ltd versus Japhet Asige & another [2018] eKLR, arming that a trial court retains jurisdiction to handle all incidental proceedings after nal judgment, provided they do not amount to re-trying the cause, but are directed towards bringing the litigation to an end. In this instance, the judgment deliberately retained the court’s supervisory control over the timelines and in addition authorised applications for extension. The Court therefore remains seized of this matter for that limited purpose. d) It is quite clear that Order (c) (iii) of the judgment required that the County Surveyor’s report shall be led “within four (4) months… or such other time as may be extended on application by this court.” The present notice of motion therefore precisely falls in the category of the application contemplated in that clause of the court order, and its properly before the court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5558/eng@2026-09-23 3

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e) The applicant placed a sworn adavit exhibiting the timely formal request to the County Surveyor and the Surveyor’s written explanation. The Respondent led only grounds of opposition raising pure points of law. Order 51 Rule 14 of the Civil Procedure Rules, 2010 permits a respondent to oppose an application by ling any one or a combination of: a. a notice of preliminary objection; and/or b. a replying adavit; and/or c. a statement of grounds of opposition. While the Rule allows grounds of opposition, it does not elevate them to the status of evidence. Grounds of opposition are intended to raise pure points of law. They are unsworn statements of legal argument and cannot, by themselves, controvert or deny facts deposed to on oath. f) The principle is straightforward, that adavit evidence is evidence on oath. It can only be properly answered by evidence on oath, a replying adavit, or by a pure point of law, that assumes the facts as stated, and on its determination, the matter can be settled. Where the respondent chooses only grounds of opposition, any factual assertions in those grounds remain unsworn and carry no evidential weight against the supporting adavit deposition, especially on contested facts. Accordingly, the court takes the respondent's deposition explaining the attempts made in complying with the decree, and the reasons proered for the delay, as uncontroverted, and therefore reasonable. For the foregoing reasons the court nds the application is merited. g) 7. Under Section 27 of the Civil Procedure Act, Chapter 21 of Laws of Kenya, cost follow the events unless where the court is convinced to order otherwise on good grounds. In this application, I nd it would be fair and just for each party to bear their own costs. Flowing from the above determinations, the court nds and orders as follows: a) The Court extends time by a further four (4) months for the, County Surveyor to comply with orders 12 (c) (i), (ii) & (iii) of the court’s judgment delivered on 4th March 2026. b) That after lapse of four (4) months, or upon ling of the surveyor’s report, whichever is earlier, the parties shall be at liberty to move the trial court in accordance with the judgment delivered on 4th March 2026. c) Each party to bear his own costs. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 23RD DAY OF SEPTEMBER 2026. S. M. KIBUNJA ELC JUDGE In the presence of: Appellant – Mr. Kahiga. Respondent – Mr. Muchiri. Kinyua/Charles - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5558/eng@2026-09-23 4

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S. M. KIBUNJA ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5558/eng@2026-09-23 5

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