[2023] KEELC 17279 (KLR)
The court held that after delivering its judgment in the appeal, it became functus officio and lacked jurisdiction to entertain new substantive applications or grant the orders sought by the applicant. The orders sought raised new causes of action which could not be determined in the court's appellate jurisdiction...
Source-derived case information.
- Citation
- [2023] KEELC 17279 (KLR)
- Parties
- Appellant: Charles Makanda Mang’oli; Respondent: Martin Fwamba Wanyama
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 21 of 2019
- Procedural Posture
- Environment and Land Appeal / Ruling on Post Judgment Application
- Outcome
- Application struck out for want of jurisdiction.
- Judges
- DO Ohungo
- Legal Topics
- Jurisdiction of Appellate Court, Functus Officio, Land Title Disputes, Mutation and Subdivision, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Makanda Mang’oli
Appellant
Martin Fwamba Wanyama
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the court has jurisdiction to grant substantive orders after judgment in its appellate capacity.
- 2 Whether the applicant is entitled to orders declaring him the lawful proprietor and reversing subdivisions post-judgment.
- 3 Whether the court can issue injunctive relief after becoming functus officio.
Ratio Decidendi
The court held that after delivering its judgment in the appeal, it became functus officio and lacked jurisdiction to entertain new substantive applications or grant the orders sought by the applicant. The orders sought raised new causes of action which could not be determined in the court's appellate jurisdiction post-judgment. The proper procedure would have been to seek review or setting aside if appropriate, but not to introduce new substantive claims. Consequently, the application was struck out for want of jurisdiction.
Court Disposition
Application struck out for want of jurisdiction.
Orders
- Notice of Motion dated January 25, 2023 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
Mang’oli v Wanyama (Environment and Land Appeal 21 of 2019) [2023] KEELC 17279 (KLR) (9 May 2023) (Ruling)
Neutral citation: [2023] KEELC 17279 (KLR)
Republic of Kenya
In the Environment and Land Court at Kakamega
Environment and Land Appeal 21 of 2019
DO Ohungo, J
May 9, 2023
Between
Charles Makanda Mang’oli
Appellant
and
Martin Fwamba Wanyama
Respondent
(Appeal was heard, and judgment delivered on December 18, 2019 by NA Matheka J Environment and Land Appeal 21 of 2019 )
Ruling
1. The appellant filed this appeal against the decision of the Western Provincial Appeals Committee read to the parties on July 10, 2003. The appeal was heard, and judgment delivered on December 18, 2019 by NA Matheka J as follows:The provisions of section 3 (1) of the Land Disputes Tribunal Act No 18 of 1990 are very clear on what matters these tribunals had jurisdiction over claims of title to registered land is not one of the matters that can or could be laid in this tribunal and the Matungu Land Disputes Tribunal and Western Provincial appeals Committee were wrong to register, hear and pass judgment and make orders against the appellants on the title to the suit land. Having found this there will be no need to go into the merits or demerits of the proceedings in the Tribunal and Committee as they never had jurisdiction in the first place. I find that this appeal has merit and I allow the same. I quash the decision/verdict of the Matungu Land Disputes Tribunal and Western Provincial appeals Committee with no orders as to costs.It is so ordered.
2. By Notice of Motion dated January 25, 2023, the appellant now seeks the following orders:1. [Spent]2. That pursuant to this Honourable Court’s decision delivered on December 18, 2019 by Hon. Lady Justice NA Matheka, the applicant be and is hereby declared the lawful registered proprietor of land known as N/Wanga/Khalaba/ 1264 situated in Mumias.3. That the creation of parallel numbers being N/Wanga/Khalaba/2015 and N/Wanga/Khalaba/2016 vide mutation carried out on December 15, 2021 is illegal and void.4. That there be an Order directing the 2nd respondent to reverse the creation of the parallel numbers in respect of the suit property and it reverts back to its original number being N/Wanga/Khalaba/ 1264. 5.That this Honourable Court do issue an order directing the County Survey Office to cancel the mutation form that were created vide N/Wanga/Khalaba/2015,2016 back to N/Wanga/Khalaba/1264. 6.That there be an Order of injunction prohibiting the 1st respondent by himself servants or agents from interfering with the applicant’s proprietorship, possession and enjoyment of the suit property.7. That the costs of this application be provided for.
3. The application is supported by an affidavit sworn by the applicant who deposed that following the above judgment, he noticed strangers in the suit property sometime in 2022 prompting him to conduct a search only to learn that the suit property had been subdivided into two parcels of land known as N/Wanga/Khalaba/2015 and N/Wanga/Khalaba/2016. He added that the subdivisions were done during pendency of the appeal in High Court and that since this court’s judgment was not appealed against or varied, it ought to be complied with.
4. Although evidence of service was availed, the respondent never filed any response to the application nor attended its hearing. Counsel for the applicant urged the court to allow the application.
5. I have considered the application, the affidavit in support and the submissions.
6. This matter was filed in the High Court as an appeal against the decision of the Western Provincial Appeals Committee read to the parties on July 10, 2003. The jurisdiction of the High Court and eventually this court while dealing with the matter was exclusively an appellate jurisdiction. The appeal having been determined, the court became functus officio in so far as its power to determine the parties’ respective claims in the matter goes. The court does not have jurisdiction to revoke or vary its decision, save in cases of applications for setting aside or review. See Raila Odinga & Others vs IEBC & Others [2013] eKLR.
7. The orders that the applicant now seeks raise new matters or causes of action which cannot be determined by the court in its appellate jurisdiction after delivery of judgment. The court has no jurisdiction to hear and determine the application. A case or application filed in a court without jurisdiction is stillborn and beyond redemption. See Phoenix of EA Assurance Company Limited v SM Thiga t/a Newspaper Service [2019] eKLR.
8. In view of the foregoing discourse, I strike out Notice of Motion dated January 25, 2023. Since the respondent did not resist the application, I make no order as to costs.
DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 9TH DAY OF MAY 2023. D. O. OHUNGOJUDGEDelivered in open court in the presence of:Ms Kegehi for the appellant/applicantNo appearance for the respondentCourt Assistant: E. Juma