https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/766

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT KEHANCHA** **ELC CASE NO. E062 OF 2025** **NYAMOHANGA MOKAMI………………………………………..PLAINTIFF** **VERSUS** **PETER MAROA NYAMOHANGA……………………………...DEFENDANT** **RULING** 1. The plaintiff filed a notice of motion dated 20th July, 2026 seeking for the following orders: 2. Spent 3. Spent 4. THAT this Honourable Court be pleased to review, vacate and set aside the judgment delivered on 28th May, 2026 by Hon. John Paul Nandi (SPM) dismissing the plaintiff’s suit with costs. 5. THAT as a consequence of the order above, this Honourable Court be pleased to re-open and schedule the suit for a fresh hearing to allow the Applicant/plaintiff to formally produce his primary identification documents and tender vital witness testimony. 6. THAT as a consequence of the order above, this Honourable Court be pleased to re-instate the temporary injunction orders dated 24th December 2025. 7. THAT the draft amended plaint, amended list of witnesses, amended list 0f documents, reply to statement of defence and witness statements annexed to this application be deemed as duly filed on payment of court fees. 8. THAT the costs of this application be in the cause. 9. The application is based on the grounds on the face of the application and the supporting affidavit of the plaintiff sworn on 20th July, 2026. The grounds are that the plaintiff supplied the documentation requested by his previous advocate as per the list of documents dated 23rd December, 2025, which list does not include his national identity card though the annexures that he handed over to the advocate included a copy of his national identity card. 10. That his witnesses, a paternal uncle/family elder Mr, Wangiti Chacha and a clan elder Mr. Chacha Busiro Chacha recorded comprehensive statements with his former advocate confirming his identity as the biological brother of the respondent and co-heir to their late father, Mogosi Maroa as evidenced by the attached bundle of witness statements marked “NM-10”. That the area assistant Chief wrote letter dated 30th March, 2026 marked “NM-11” confirming his identity. 11. That his former advocate explicitly assured him that these vital pieces of evidence were fully documented, presented and securely placed in the court’s records for the scheduled trial. That during the hearing on 6th May, 2026 he testified truthfully under the firm mistaken belief that his legal representative had complied with all evidentiary instructions and filed the necessary exhibits. Samuel Wangiti Chacha attended court and tried to raise his arm in order to be given a chance to testify, which request was not granted as per court procedure. 12. That unknown to the plaintiff, through an oversight, mistake and professional blunder of his previous advocate, the identification records were never formally produced as exhibits in the main suit, the list of witnesses and list of documents dated 23rd December 2026 were never amended to include his other witnesses and documents. Therefore, the critical documentation and witnesses were never produced in court, resulting in a severe miscarriage of justice. 13. That the applicant was deeply shocked to receive the judgment dated 28th May, 2026, in which Hon. J.P.NANDI (SPM) dismissed his entire claim with costs specifically because no identification document, birth certificate or familial witness testimony was produced to support his case. That his right to peaceful and quiet possession of the suit property remains unprotected. That the failure to adduce this pivotal evidence in person at the hearing was caused entirely by a profound mistake, oversight and professional blunder on that part of his previous advocate, which occurred without any trickery, negligence or fault on the plaintiff’s part. 14. That the unfortunate failure by his previous advocate on record to amend his list of documents and witnesses to include his national identity card and witnesses in this matter is an inadvertent inexcusable mistake on their part, which should not be visited upon him. That due to financial hardships, the plaintiff was unable to file this application earlier and this application is brought without undue delay and in good faith. 15. The defendant filed a replying affidavit sworn by himself on 12th August 2026 in opposing the application. The grounds are that the applicant’s former advocate on record never had a copy of the applicant’s national identity card and that is why the same was never produced in court hence the applicant has approached this court with his mouth full of lies. That litigation must have an end and this matter was heard and determined on merit pursuant to the judgment dated 28th May, 2026. That the application is mischievous, misleading and made in bad faith and should be dismissed. The defendant filed written submissions. **Determination** 1. I have carefully considered the application, the grounds in support, the replying affidavit and submissions and find the issue for determination to be as follow: ***The first issue for determination is whether this court is functus officio*** 1. The doctrine of functus officio is one of the expressions in law that seeks to achieve finality in litigation. In the case of **Telkom Kenya Limited v John Ochanda (Suing on his Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR** the Court of Appeal held that: ***“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.”*** 1. Further, in **Mohmed Dagane Falir v Alfonce Mutuku Muli & another [2020] eKLR,** Odunga J (as he then was), on the doctrine of functus officio held as follows- ***“I associate myself with the position adopted by the Supreme Court decision in Raila Odinga & 2 Others vs. Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR where the Supreme Court 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 to the effect that:*** ***“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.”*** ***That position however clearly applies to a situation where the Court has pronounced itself on merits. It cannot once more revisit the same decision with a view to arriving at a different decision. However, the court is not barred from dealing with the matter in order to facilitate its decision.”*** 1. This suit was heard and determined vide a judgment delivered on 28th May, 2026. The said judgment has neither been varied and/or set aside by a Court of competent jurisdiction nor has the defendant or any other dissatisfied party lodged an appeal against it. For this reason, the judgment delivered on 28th May, 2026 is still binding to the parties herein and to this Court. 2. The Court of Appeal in the case of **Dickson Muricho Muriuki v Timothy Kagondu Muruiki & 6 others [2013] eKLR** when dealing with the issue of functus officio held that – ***“…we are of the view that once this Court has pronounced the final judgment, it is functus officio and must down its tools. In the absence of statutory authority, the principle of functus officio prevents this Court from re-opening a case where a final decision and judgment has been made. We bear in mind that in the new constitutional dispensation, most cases will end at the Court of Appeal and it is inadvisable for this Court to be able to issue stay orders after delivery of its judgment. We remind ourselves that the principle of functus officio is grounded on public policy which favours finality of proceedings…”*** 1. Bound by the aforementioned Court of Appeal holding, and in view of the fact that the judgment delivered on 28th May, 2026 is still binding on the parties, this Court finds that it is functus officio. The application dated 20/7/2026 seeks to re-open the case, allow new evidence to be tendered to fill the gaps pointed out in the judgment, and invites this court to arrive at a different decision. 2. In the end, this Court finds that the application dated 20th July, 2026 is bereft of merits. It is hereby dismissed with costs to the defendant. **Dated, Signed and Delivered in open Court at Kehancha on this 26th day of August, 2026 virtually via Microsoft Teams.** **J.P. NANDI** **SENIOR PRINCIPAL MAGISTRATE** **In the presence of:** **Mr. Mangera/Enock…….Court Assistant** **Plaintiff……….Absent** **Defendant……..Present** **Advocate for plaintiff/applicant……..Ms. Keboye present**