Paul Juma Ombidi v Bernard Odhiambo Omollo & Margaret Anyango Ogola (Suing as the Legal Representative of Peter Ochumba Jaleny)

c) That the Applicant be joined as an interested party or co-defendant in these proceedings. d) That the costs of the application be in the cause. 2. The application is anchored on the grounds set out on its face, supported by the Applicant's affidavit sworn on 3rd November 2025, a supplementary affidavit, and a surveyor's report. The Applicant contends that her late husband entered into a land sale agreement in 1990 with the original owner, Henry Omolo Odeko (the deceased father of the 2nd Respondent), for a portion measuring approximately 1/4 acre of land parcel Gem/Kajulu/49. She asserts that her family took vacant possession, constructed rental houses, fenced the property, and has remained in open, continuous, and uninterrupted occupation for over thirty years. She laments that the Plaintiff instituted the instant adverse possession suit behind her back, obtained judgment on 31st October 2022, and subsequently had the entire parcel transferred to his name on 16th December 2024, without her participation or knowledge. 3. The application is vehemently opposed by the Plaintiff/1st Respondent, Paul Juma Ombidi, through his Replying Affidavit sworn on 15th June 2026. The Plaintiff deposes that the application is scandalous, vexatious, and an abuse of the court process; that he is the duly registered absolute proprietor of land parcel Gem/Kajulu/49; that the judgment was delivered on merit following a full trial; and that the decree has already been fully executed, thereby rendering this Court functus officio. B. Summary of the Parties' Submissions 4. The Applicant’s Submissions: Learned counsel for the Applicant argued that the Court possesses wide inherent powers under Sections 1A, 1B, and 3A of the 2 | Page HOMA BAY ELC CAUSE NO. 32 OF 2021 – RULING

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Civil Procedure Act, Article 159 of the Constitution, and established jurisprudence (Shah v. Mbogo) to set aside a judgment to avoid injustice, fraud, or hardship resulting from a lack of service and non-participation. Citing the Supreme Court decision in Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others [2014] eKLR, counsel submitted that the Applicant holds a direct proprietary stake in the suit land and qualifies as a necessary party whose presence is required for complete adjudication. 5. The Plaintiff/Respondent’s Submissions: Learned counsel for the Plaintiff contended that an application for joinder under Order 1 Rule 10(2) of the Civil Procedure Rules and a request to set aside a judgment can only be entertained in pending proceedings. Relying on the Court of Appeal decisions in JMK v. MWM & Another [2015] eKLR and Tanga Gas Distributors Ltd v. Said & Others [2014] EA 448, counsel argued that once a suit has been finally heard and determined on merit, and the decree fully executed, the rules on joinder become inapplicable and the court is completely functus officio. C. Issues for Determination 6. Upon carefully evaluating the application, affidavits, main suit record, and rival submissions, the following issues crystallize for determination: 7. Whether this Court has the jurisdiction or legal mandate to set aside a final judgment and reopen a suit that has been fully heard, determined, and executed, taking into account the dimensions of time, delay, and comparative regional jurisprudence. 8. Whether an application for joinder as an interested party under Order 1 Rule 10(2) of the Civil Procedure Rules is maintainable after a final judgment, complete execution of the decree, and the exhaustion of the judicial mandate (functus officio). 3 | Page HOMA BAY ELC CAUSE NO. 32 OF 2021 – RULING

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Analysis and Determination Applicability of Rules on Joinder and Inherent Powers 9. Joinder Rules: While Order 1 Rule 10(2) of the Civil Procedure Rules permits parties to seek joinder as an interested party, this provision exclusively contemplates and governs pending proceedings where a suit remains active and trial or adjudication is ongoing. Once a final judgment has been rendered and fully executed through the issuance and transfer of a title deed, the suit is concluded and disposed of, rendering rules on party joinder completely inapplicable. 10.Inherent Powers: Although the court possesses wide inherent powers under Sections 1A, 1B, and 3A of the Civil Procedure Act to do justice, these powers cannot be invoked to bypass statutory finality, override the doctrine of functus officio, or resurrect a finalized, executed court file years after the fact. 11.Issue 1: Timeframe, Finality, Post-Execution, and the Doctrine of Functus Officio 12.The record confirms that the substantive suit (ELC Cause No. 32 of 2021) was instituted by the 1st Respondent/Plaintiff via an Originating Summons dated 5th August 2019. This culminated in a judgment delivered by this Court on 31st October 2022. Consequent to that judgment, the register was rectified, and the Plaintiff was duly registered as the absolute proprietor of land parcel Gem/Kajulu/49 on 16th December 2024. The instant application was only filed in November 2025—years after finality and full execution. 13.The Applicant, Margaret Anyango Ogola, now seeks to set aside that judgment and be enjoined as an interested party. In evaluating her application, the Court must carefully scrutinize her timeline, the explanation for the lapse of time, 4 | Page HOMA BAY ELC CAUSE NO. 32 OF 2021 – RULING

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and the principles governing laches, equity, and diligence. 14.According to the Applicant’s supporting affidavit, her timeline unfolds as follows: Discovery in 2024: The Applicant asserts that she first became aware that the suit land had been transferred when the Plaintiff approached her, claimed ownership, and demanded the sum of KES 1,500,000/-. Official Search and Survey (January to June 2025): Prompted by these demands, she initiated investigations, leading to a physical site visit and formal Surveyor’s Report dated 20th January 2025, alongside official land registry verifications stamped on 12th June 2025. Filing in Court (November 2025): Despite completing her investigations and procuring the survey report by January/June 2025, the Applicant did not file the instant Notice of Motion until 3rd November 2025. Court's Analysis on Delay and Conduct 15.It is a cardinal principle of our jurisprudence that equity aids the vigilant, not the indolent (Vigilantibus non dormientibus aequitas subvenit). While the Applicant contends that she was completely unaware of the ongoing court proceedings during the trial and only discovered the adverse transfer in 2024, her subsequent conduct leaves much to be desired. 16.Inordinate and Unexplained Lapse Post-Discovery: Even assuming that the Applicant’s initial lack of knowledge up to 2024 is excusable due to her nonparticipation in the original suit, she admits to discovering the true state of affairs upon confronting the 1st Respondent in 2024. By 20th January 2025, she was armed with a professional surveyor's report confirming her physical boundaries, fence lines, and rental houses on the property. Yet, she waited 5 | Page HOMA BAY ELC CAUSE NO. 32 OF 2021 – RULING

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nearly ten additional months, filing her application only on 3rd November 2025. No cogent, month-by-month explanation has been tendered to justify this prolonged inaction after actual discovery. 17.Impact on Finality of Judgments: The judgment sought to be uprooted was delivered on 31st October 2022—over three years prior to the filing of this application. Routinely setting aside judgments years after they have been executed and titles issued, absent strict proof of promptitude and utmost good faith, would render judicial decrees insecure and undermine the finality of litigation. 18.The Principle of Disclosure: A party invoking the equitable discretion of the court to set aside a regular judgment must demonstrate absolute candor. The Applicant’s papers gloss over the active period between her discovery in 2024 and her eventual movement of the court in November 2025, leaving a judicial vacuum regarding what steps were taken during that lengthy interregnum. 19.Consequently, while the Applicant has painted a picture of long-term occupation of a minor portion of the land, her failure to act with promptitude after discovering the adverse title in 2024 heavily weighs against the exercise of the court's discretion in her favor. Equity demands diligence upon discovery, which is glaringly missing in this instance. The Maxim: "Equity Aids the Vigilant, Not the Indolent" 20.Frequently expressed as "delay defeats equity," this foundational maxim dictates that a court's equitable jurisdiction will not be invoked by a party who has slept on their rights or has been guilty of unreasonable delay ( laches) in 6 | Page HOMA BAY ELC CAUSE NO. 32 OF 2021 – RULING

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seeking relief. Time is a foundational pillar of procedural law, dictating that legal remedies must be sought within reasonable limits. When a party seeks to set aside a judgment or join proceedings long after a matter has been finalized and executed, the element of time operates as both a statutory and an equitable bar. 21.Across East and Central Africa, procedural rules dictate that applications to set aside judgments must be brought without undue delay. An unexplained, inordinate delay creates an equity against the applicant, as it prejudices the successful litigant's quiet enjoyment of rights established by the court. While Article 159(2)(b) of the Constitution enjoins courts to administer justice without undue regard to procedural technicalities, procedural timelines regarding laches and diligence are designed to protect the finality of judicial decrees and prevent prejudice to opposing litigants. 22.An applicant seeking discretionary and equitable relief—such as setting aside a regular judgment and reopening a concluded trial after execution—must provide a full, candid, and satisfactory explanation for every phase of delay. The Applicant’s affidavit is completely silent and bereft of any explanation as to what transpired between her discovery of the judgment in 2024 and her decision to move the court in November 2025. This prolonged, unexplained delay constitutes fatal laches. Granting the orders sought after such unprotested acquiescence, post-execution, would occasion grave prejudice and uncertainty to the execution process lawfully completed by the 1st Respondent. The Doctrine of Functus Officio 23.It is a foundational principle of our civil justice system that litigation must come to an end (interest reipublicae ut sit finis litium). The common law 7 | Page HOMA BAY ELC CAUSE NO. 32 OF 2021 – RULING

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doctrine of functus officio prohibits, in the absence of statutory authority, the reopening of a matter before the same court, tribunal, or statutory actor that rendered the final decision. 24.As noted in Canadian jurisprudence (Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848) by Sopinka J., a final decision of a court cannot be reopened once the formal judgment has been drawn up, issued, and entered, save for slips in drawing it up or errors in expressing the manifest intention of the court. The rule exists to provide finality to judicial decisions so that individuals and businesses are afforded the certainty they require to operate effectively, ensuring that the advantages of avoiding uncertainty outweigh reasons to change a determination in a particular case. 25.The Supreme Court of Kenya, in Raila Odinga & Others v. IEBC & Others [2013] eKLR, aptly elucidated the doctrine of functus officio by citing Daniel Malan Pretorius: "The functus officio 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... Once such a decision has been given, it is... final and conclusive. Such a decision cannot be revoked or varied by the decision-maker." Regional Comparative Jurisprudence 26.Regional comparative jurisprudence heavily reinforces this absolute threshold of finality: (I) Tanzania: In George Abel Rwiza v. Yusuph Shabani Matibwa (Misc. Civil 8 | Page HOMA BAY ELC CAUSE NO. 32 OF 2021 – RULING

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Application 91 of 2021) [2021] TZHC 12519, the High Court emphasized that the finality of judgments is a legal principle making decisions permanent, immutable, and binding, noting that courts are not meant to maintain conflicts indefinitely or allow subsequent forums for quarrels and alterations once decrees are ready for execution. The court observed: "It has to be noted that, finality of judgments is a concept or, a legal principle according to which the decision taken by the court at some point becomes permanent, immutable, binding and open to enforcement. It cannot be disputed again... Courts are not one's pocket army as some people thinks. Their aim is to resolve conflicts and not to maintain them indefinitely... If, however, they are not respected and easily changed or overturned, courts are likely to lose faith and support among people." (II) Uganda: The High Court of Uganda (Commercial Division) in Mwanje v. Mukose [2024] UGCommC 316 reinforced that once a judgment or order is passed, entered, or perfected according to court practice, the court becomes functus officio and lacks inherent jurisdiction to set it aside outside specific statutory review windows. (III) Malawi: Malawi Supreme Court of Appeal and High Court jurisprudence—such as in Phiri v. Kachere (Civil Cause 282 of 2016) [2018] MWHC 667, where Justice Kenyatta Nyirenda distinguished restoration powers during trial from matters outside the trial stage— upholds that the moment a final judgment is delivered and executed, judicial authority is fully exhausted, barring summary post-execution motions to reopen closed records. Justice Kenyatta Nyirenda observed: “Before resting, I wish to observe that the present case is distinguishable from a proceeding, or any part thereof, that is 9 | Page HOMA BAY ELC CAUSE NO. 32 OF 2021 – RULING

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struck out on account of a party's failure to attend trial... There is no corresponding power vested in the Court under CPR with regard to matters outside trial stage.” Having rendered its definitive judgment on 31st October 2022 and the decree having been fully executed with the land transfer on 16th December 2024, this Court is legally functus officio and lacks the jurisdiction to reopen the concluded file or set aside the judgment. Issue 2: Maintainability of Joinder Post-Judgment and Post-Execution (i) The Applicant seeks to be joined as an interested party pursuant to Order 1 Rule 10(2) of the Civil Procedure Rules. While this rule empowers the court to add parties whose presence is necessary to enable the court effectually and completely to adjudicate upon all questions involved in the suit, Kenyan jurisprudence is settled that this rule contemplates pending proceedings. (ii) The application fundamentally fails to comply with the structural scheme of the Civil Procedure Rules because it attempts to utilize interlocutory mechanisms (such as joinder under Order 1 Rule 10(2)) on a file that has already been heard, determined, and fully executed through a final decree and title transfer. As established by binding jurisprudence, joinder rules exclusively contemplate active, pending proceedings. (iii) The Court of Appeal in JMK v. MWM & Another [2015] eKLR, endorsing Tanga Gas Distributors Ltd v. Said & Others [2014] EA 448, categorically held that: "...an application for amendment or joinder of parties where 10 | P a g e HOMA BAY ELC CAUSE NO. 32 OF 2021 – RULING

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proceedings are still pending before the court... It is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable..." (30) Comparative regional authorities from Tanzania and Malawi mirror this stance, prohibiting back-door relitigation through summary postjudgment joinders: Tanzania: Under Order I Rule 10(2) of the Civil Procedure Code [Cap 33 R.E. 2002], the rule explicitly allows joinder “at any stage of the proceedings”. Tanzanian appellate courts— such as in Farida Mbaraka & Farid Ahmed Mbaraka v. Domina Kagaruki, Civil Appeal No. 136 of 2006—have consistently interpreted this to mean prior to the delivery of the final judgment or decree, because introducing a new party post-judgment violates the finality of litigation. Malawi: Under Malawian civil practice, once a final judgment or order is perfected, the trial court lacks the inherent jurisdiction to amend the title of the action to bring in fresh defendants or plaintiffs. If a non-party seeks to challenge or become involved with a judgment post-trial, Malawian jurisprudence requires utilizing execution-stage frameworks (such as interpleader proceedings or stay applications like in Dyson Mkwapatira v. Mr. Malunga & Others , MSCA Misc. App. No. 11 of 2025) or instituting an independent, fresh substantive action rather than seeking retroactive joinder. In the present matter, the suit was fully disposed of on 31st October 2022, and the decree was fully executed with the issuance of a title deed to the Plaintiff. There are no pending 11 | P a g e HOMA BAY ELC CAUSE NO. 32 OF 2021 – RULING

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proceedings before this Court in ELC Cause No. 32 of 2021 upon which an order of joinder can be grafted. The Applicant is not entirely without recourse: where a party contends that their proprietary rights or overriding interests were bypassed, or that a title was acquired through fraud or misrepresentation in prior proceedings to which they were not a party, the appropriate avenue in law is to institute an independent substantive suit to ventilate those claims, rather than seeking to exhume a spent, finalized, and executed file. ISSUE 4: Compliance with Section 106B of the Evidence Act (Cap 80) Statutory Requirement: Under Sections 106A and 106B of the Evidence Act, any information contained in an electronic record or computergenerated output (such as digitally printed search results, digital maps, or electronic surveyor reports) must satisfy specific admissibility conditions. Crucially, Section 106B(4) mandates that such records be accompanied by a certificate identifying the electronic record, describing how it was produced, giving particulars of the device, and signed by a person occupying a responsible position in relation to the operation of the relevant device. Compliance Status: The Applicant’s annexures—specifically the land registry searches and electronic documentation—lack the mandatory supporting Section 106B certification. In Kenyan civil practice, failure to accompany computer-generated evidence with the requisite certificate renders such annexures legally defective and inadmissible as electronic evidence unless the statutory threshold is met. 12 | P a g e HOMA BAY ELC CAUSE NO. 32 OF 2021 – RULING

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Disposition (1) Accordingly, and for the comprehensive reasons set out above, the Applicant’s Notice of Motion dated 3rd November 2025 is devoid of merit and is hereby dismissed. (2) As this matter touches on deeply contested land occupation and proprietary claims between neighbour’s, each party shall bear their own costs of this application. (3) It is so ordered. DELIVERED, DATED, AND SIGNED AT HOMA BAY THIS 28TH DAY OF SEPTEMBER 2026. HON. JUSTICE J.W. WANYONYI JUDGE IN THE PRESENCE OF: 1. KIMBERLY FOR THE APPLICANT/PROPOSED INTERESTED PARTY 2. MIGELE FOR THE PLAINTIFF/1ST RESPONDENT 3. MS. AWINO, COURT ASSISTANT 13 | P a g e HOMA BAY ELC CAUSE NO. 32 OF 2021 – RULING

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