https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4881

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC APPEAL NO. E001 OF 2024** **SOLOMON MURIIKI JACKSON:::::::::::1ST APPELLANT/RESPONDENT** **ELVIS MUGUNA::::::::::::::::::::::::::::::::2ND APPELLANT/RESPONDENT** **LILIAN GACHERU NTARANGWI::::::::3RD APPELLANT/RESPONDENT** **JASON KIAMBI MUNGANIA:::::::::::::::4TH APPELLANT/RESPONDENT** **VERSUS** **SOLOMON MAINA MWANGI:::::::::::::::1ST RESPONDENT/APPLICANT** **FRANCIS NYAGAH MUTHUA::::::::::::::2ND RESPONDENT/APPLICANT** **VERONICA MWIHAKI GATHURI:::::::::3RD RESPONDENT/APPLICANT** **RULING** The first application is dated 4th June 2025 and is brought under Section 5 of the Judicature Act, Cap 8 Laws of Kenya and Articles 159 (2) of the Constitution of Kenya, Sections 1A, 1B & 3A seeking the following orders; 1. That this application be certified as urgent and be heard ex parte in the first instance and service of the same be dispensed with in the 1st instance; 2. That the 1st, 2nd and 3rd Respondents, Solomon Maina Mwangi, Francis Nyagah Muthua and Veronica Mwihaki be committed to civil jail for such a period of time as this Honourable Court may deem fit for having deliberately disobeyed the orders of this Honourable Court granted on the 26th day of March 2025; 3. That any other or further orders of the court be granted geared towards protecting the dignity and authority of the Honourable Court. 4. That costs of this application be provided for. The application is based on grounds that the Appellants have deliberately disobeyed the orders of this Honourable Court granted on the 26th of March 2025. The dignity and authority of the court must be protected at all times and parties must observe and respect the due process of the law. The acts of disobeying court orders have reached high levels in Kenya and the court must now exercise their Constitutional authority in punishing people for contempt. That it is in the interest of justice that this application be allowed. It is just and mete that the orders sought be granted. The second application is dated 26th June 2026 and is brought under the Provisions of Order 45 Rule 1, 2 and 3 of the Civil Procedure Rules Order 51 of the Civil Procedure Rules seeking the following orders; 1. That this application be certified urgent and heard Ex-parte in the 1st instance. 2. That this court be pleased to Review/vary and/or set aside the orders issued pursuant to the judgment delivered on the 26th March 2025 by Hon Lady Justice Nelly. A. Matheka on account that there exist a mistake/error on the face of the record. 3. That the Honourable Court be pleased to stay the proceedings in this cause pending hearing and determination of this application thereof. 4. That the costs of this application be provided for. It is based on the Supporting Affidavit of Solomon Maina Mwangi and grounds that there is apparent error on the face of the record to wit that the 2nd Respondent passed on during the hearing of the main suit. A fact that renders the orders issued incapable of being implemented. That the titles had already been issued in favour of the 1st and 2nd Appellants/Applicants well before the institution of the suit, and as such, the Appellants/Applicants are approaching this Honourable Court with unclean hands and have misrepresented material facts in a bid to mislead the court. That the original titles registered in the names of the 1st and 2nd Appellants/Applicants were duly deposited at the office of the Respondents’ Advocates, a fact well within the knowledge of the Appellants. That it is in the interest of justice that orders sought be granted and the Applicants stands to suffer irreparable harm/ prejudice of the prayers sought are not granted thereof. That this application has been made promptly and in good faith and it is only just that the orders sought be made. This court has carefully considered the application and submissions therein. The Respondent submitted that the remedy of review is not available for the Applicant. In the case of Mwihoko Housing Company Limited vs Equity Building Society (2007) 2 KLR 171 is relevant. It was held, that; *“A review could have been granted whenever the Court considered that it was necessary to correct an error or omission on its part. The error or omission must have been self-evident and should not have required an elaborate argument to be established. It would neither have been sufficient ground of review that another Court could have taken a different view of the matter nor could it have been a ground that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or another provision of law could not have been a ground for review. There was no discovery of a new and important matter or evidence which after due diligence was not within the knowledge of the appellant at the time the judgment and decree was passed. There was no error apparent on the face of the record or any other sufficient reason to justify review. In the Court of Appeal decision of Rose Kaiza Vs Angelo Mpanju Kaiza 2009, the Court was categorical that;* *“An application for review under order 44 Rules 1 of the Civil Procedure Rules must be clear and specific on the basis upon which it is made…”* Order 45, Rule 1(b) is clear that for the court to review its decision, certain requirements should be met. This section provides as follows: *“(1). Any person considering himself aggrieved-* *(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 sufficient 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.* *(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.”* The aforesaid rule is based on section 80 of the Civil Procedure Act, Cap. 21 Laws of Kenya which states as follows: *“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.”* Under Section 80 of the Civil Procedure Act, the court has unfettered discretion to make such orders as it thinks fit on sufficient reason being given for review of its decision. However, this discretion should be exercised judiciously and not capriciously. In Court of Appeal, Civil Appeal No. 211 of 1996, National Bank of Kenya vsNdungu Njau*,* the Court of Appeal held that; *“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evidence and should not require an elaborate argument to be established. It will not be sufficient ground for review that another Judge could have taken a different view of the matter nor can it be a ground for review that the court proceed on an incorrect expansion of the law”.* From the above provisions of the law, authorities cited and the applicant stated that there is apparent error on the face of the record to wit that the 2nd Respondent passed on during the hearing of the main suit. A fact that renders the orders issued incapable of being implemented. The Applicants are not clear when this happened and why they proceeded with the matter without notifying the court. I find that the instant application as presented cannot fulfill the elements for granting a review. I find that there is no omission or error on the face of the record in the instant case. No evidence of the demise of any of the Respondents has been presented to this court. I find that there is no sufficient in this case to review the judgement and/or the execution. I note that this application for review is dated 25th June 2026 and the judgement was delivered on 26th March 2025, the Applicants are guilty of laches. I find that this court is now functus officio. In the case of Telkom Kenya Ltd vs John Ochanda (suing on his behalf and on behalf of 996 former Employees of Telkom Kenya Ltd (supra), the Court of Appeal held as follows on the *functus officio* doctrine; *“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon--* *The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions. ---”* The Supreme Court of Kenya in the case of Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others (2013) eKLR, cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, *“The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832* which reads; *“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...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.”* Section 99 of the Civil Procedure Act provides exceptions to the doctrine of *functus officio* in the following terms- *“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”* It is clear that the doctrine of *functus officio* does not bar a court from entertaining a case it has already decided but prevents it from revisiting the matter on a merit-based re-engagement once final judgment has been entered as is the case herein. Having discharged its duty on this suit this court is therefore *functus* *officio*, defined in Black's Law Dictionary, Ninth Edition as *“having performed his or her office (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”* In the circumstances, the court is wary of the Applicants’ invitation to re-engage with this dispute. Having found that this court is functus officio and rejecting the application for review I find that the application is not merited and I dismiss it with costs. On the first application for contempt the Applicants state that the application was served upon the Advocates for the Respondents who has responded to the same. However, in the circumstances of this case I find that the Respondents need to be served personally due to the allegation that one of them is deceased. How would one be committed to civil jail if they are deceased? Be that as it may, the Respondents state that the titles had already been issued in favour of the 1st and 2nd Appellants/Applicants well before the institution of the suit, and as such, the Appellants/Applicants are approaching this Honourable Court with unclean hands and have misrepresented material facts in a bid to mislead the court. That the original titles registered in the names of the 1st and 2nd Appellants/Applicants were duly deposited at the office of the Respondents’ Advocates, a fact well within the knowledge of the Appellants. These have been attached in the supporting affidavit of Solomon Maina Mwangi dated 25th June 2025 and marked Mk-1 and Mk-2. I find this application dated 4th June 2025 is also not merited and is dismissed with costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 28TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**