Muthoni & another v Muhuhi & 2 others (Environment and Land Appeal E006 of 2025) [2026] KEELC 3627 (KLR) (11 June 2026) (Judgment)

Muthoni & another v Muhuhi & 2 others (Environment and Land Appeal E006 of 2025) [2026] KEELC 3627 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELC 3627 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Appeal E006 of 2025 EK Makori, J June 11, 2026 Between Faith Wangu Muthoni 1st Appellant Francis Maina Mwai 2nd Appellant and Osmond Koigu Muhuhi 1st Respondent Michael Wagura Wachira 2nd Respondent Samuel Ndungu Wang'Omве 3rd Respondent (Being an Appeal from the Ruling and Order of the Chief Magistrate's Court at Nyeri by Hon. Elena Nderitu, C.M., in Nyeri MELC No. 227 of 2007, dated 5th February 2025) Judgment 1.This appeal is against the ruling and order of the Chief Magistrate's Court at Nyeri, issued by Hon. Elena Nderitu, C.M. (as she then was) in Nyeri MELC No. 227 of 2007, dated 5th February 2025. 2.The Appellants submitted a Memorandum of Appeal dated February 26, 2025, setting forth the following grounds of appeal.a.The learned Chief Magistrate erred in law and in fact by stating that the Appellants' Application dated 18th March 2024 was not brought under any legal provision, having forgotten that the Appellants are laymen and a woman, not lawyers, and should not be told that they failed to quote the law.b.The learned Chief Magistrate erred in law and in fact by dismissing the Appellants' Application dated March 18, 2024, and by refusing to consider the number of years the Appellants have lived on this Government land, Mweiga/Gakanga/186, from 1980 to date, while waiting for the land to be subdivided by the County Council of Nyeri (now the County Government of Nyeri) so that they could be given their respective portions and title deeds.c.The learned Chief Magistrate erred in law and in fact by refusing to consider the documentary evidence attached to that Application, which proves that the Appellants have been living on this land and have been waiting for subdivision by the Government.d.The learned Chief Magistrate erred in law and in fact by quoting, with apparent clarity, that "That according to the award, the land was to be sub-divided among those who were on the land," yet failed to consider that the Appellants were still on the land and that the County Government should consider those on the land, the Appellants being some of those, not that the County Government brings strange people and chases away the Appellants unconstitutionally.e.The learned Chief Magistrate erred in law and in fact by failing to consider that the 1st Respondent has sued the wrong parties in the said civil case No. 227 of 2007, because the land parcel No. Mweiga/Gakanga/186 belonged to the Kenya Government, not to the 2nd and 3rd Respondents. This proves that even the award dated 7th January 2011 was not in accordance with the law, and that the learned Chief Magistrate should have considered the Appellants' Application and stopped the County Government from engaging in its illegal activities, including bringing other strangers to that place.f.The learned Chief Magistrate erred in law and in fact by failing to consider that the so-called Settlement Executive Committee of Gakanga, led by one Mr. Marekia, has nothing to do with Government land parcel No. Mweiga/Gakanga/186. Even the County Government Officer who deposed on 29th February 2024 did not say that the Appellants do not come from this land; therefore, his Affidavit should not have been considered by the court as true or of any worth.g.The learned Chief Magistrate erred in law and in fact by failing to consider that the Tribunal did not find that any portion of land parcel No. Mweiga/Gakanga/186 belongs to Osmond Koigu, who brought that case to the court when the Tribunal visited this land; therefore, the learned Chief Magistrate should not have considered the Tribunal's award in dismissing the Appellants' Application.h.The learned Chief Magistrate erred in law and in fact by quoting section 4(4) of the Limitation of Action Act and stating that the decree was issued by the Tribunal more than 12 years ago. Yet the Appellants, despite still living on this land parcel No. Mweiga/Gakanga/186 were not sued because there was no reason for Osmond Koigu to sue the Appellants. Therefore, the Chief Magistrate should not have dragged the Appellants into the corrupt activities of the County Government of Nyeri by supporting the sub-division of the said land, throwing the Appellants away, and bringing strangers to this land.i.The learned Chief Magistrate erred in law and in fact by failing to consider that even the Appellants could claim this land from the Government by way of Adverse Possession under sections 37 and 38 of the Limitation of Actions Act, having lived on this land parcel No. Mweiga/Gakanga/186 for over 12 years without interruption (in fact, the Appellants have occupied this land for 45 years).j.The learned Chief Magistrate erred in law and in fact by bringing extraneous matter into the case to support the County Government of Nyeri officer who deposed on 29th February 2024 and to support her findings as true and worthy of any credit, thereby causing the Chief Magistrate's court to arrive at the wrong conclusion. 3.The Appellants pray for the following orders:a)This appeal is allowed.b)The orders of the Chief Magistrate in the said case No. 227 of 2007, dated February 5, 2025, be set aside.c)The cost of this Appeal and of the court below.d)This Honorable Court may make any other orders it deems fit and to grant. 4.The impugned ruling arose from the determination of the Appellant’s application dated 18th March 2024, in which they sought to be joined as interested parties and an order restraining the 3rd Respondent, namely, the County Government of Nyeri, from interfering with the plots acquired through the subdivision of Land Parcel No. Mweiga/Gakanga/186. They also requested the return of confiscated building materials and items. 5.The Appellants claim that they and their entire families have been living on the suit land in Gakanga Scheme, commonly known as New Gakanga, in Endarasha Location, Kieni West Sub-County in Nyeri County, from the year 1980 to date, and that the said subdivision thereof does not recognize the residents. 6.The 2nd Appellant deposed in her supporting affidavit that, according to the court file in this matter, the dispute was referred to arbitration by clan elders, chaired by the Kieni West Divisional Officer (DO), who heard the case and filed the award in this court on January 7, 2011. According to the said award, the land parcel No. Mweiga/Gakanga/186 was to be subdivided among those who were on the ground, and the award to that effect was adopted as the judgment of the court. 7.She asserted that, through unlawful methods, the County Government subdivided the entire land parcel No. Mweiga/Gakanga/186 into 28 plots and sections, subsequently transferring some portions to certain corrupt officials to unlawfully own plots there, with the intention of rendering the residents who have already settled in the area destitute. Furthermore, this subdivision does not conform to the award sanctioned by the court, which was filed on 7th January 2011. 8.The County Government has issued a threat to evict them; however, she stated that her father, Benson Waitha Mwangi, was acknowledged by the now-defunct County Council of Nyeri and should be recognized constitutionally by the County Government of Nyeri, which ought to allocate to them the area they currently occupy. 9.The Trial Court then gave its ruling on the 5th of February 2025, finding that the suit before it, that is CM ELC No.227 of 2007, terminated on 22nd March 2011, and that a Decree was issued. Thus, no question or issue remained to be settled, and therefore, they did not meet the criteria to be enjoined as interested parties in the suit. 10.Regarding the second prayer, which requests to restrain the 3rd Respondents from interfering with the subdivided plots and to annul them so they revert to L.R No. Mweiga/Gakanga/186, the prayer essentially constitutes an injunctive order. Such a request cannot be granted once a final decision has been made in the suit, as it would be tantamount to the court sitting in appeal over its own judgment. Consequently, the application was dismissed with costs, and the Appellants then lodged this appeal against this ruling. Analysis and Determination 11.The Appellants herein are aggrieved by the Trial Court’s decision to decline to join them in the suit, its refusal to restrain the County Government of Nyeri from interfering with the subdivided plots, and its refusal to cancel the subdivided plots and revert them to L.R No. Mweiga/Gakanga/186. 12.I will delineate the issues arising from the materials and submissions presented before me as follows: Should the Appellants have been granted joinder as interested parties by the trial court? Should the trial court have issued an injunctive order restraining the County Government of Nyeri from interfering with the subdivided plots and from canceling them to revert to L.R. No. Mweiga/Gakanga/186? Costs. Should the Appellants have been enjoined as interested parties in the trial court? 13.The suit before the trial court was instituted by the 1st Respondent herein by Plaint dated 5th May 2007, claiming to be the registered owner of Plot No.22 Gakanga, relocated to New Plot No.22 in Mweiga/Gakanga/186. He averred that the defendants had attacked him at his home while he was undertaking construction of the fence and had threatened his workers if they continued with the works. He prayed for Ksh. 5,200/= as the cost of the destroyed works and labor, a permanent injunction, a declaration that the defendants are trespassers, and costs and interest of the suit. 14.The matter was referred to the now-defunct Land Disputes Tribunal, where it was heard and determined, and an arbitration award was read to the parties on December 14, 2010. The decision was that the County Council of Nyeri would subdivide plot No. 186 into individual plots and show each person their plot preference to be given to the 18 original owners as per the list. The same was adopted as the Court's judgment on June 22, 2011. 15.The appellants, acknowledging the implications of the aforementioned ruling and asserting that they were the original settlers of the land and should have been recognized as the rightful occupants, applied to be joined in the matter as interested parties. As previously stated, their application was denied. 16.Order 1, Rule 10 of the Civil Procedure Rules governs joinder of interested parties. Order 1, Rule 10 provides that:“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 17.The Black's Law Dictionary defines an “interested party” as "A party who has a recognizable stake (and therefore standing) in the matter." It also defines a “Necessary Party” as “a party that is closely connected to a lawsuit should be included in the case if feasible, but whose absence will not require dismissal of proceedings.” An interested party is someone identified as directly affected by the case. 18.Whereas the Appellants appear to have an identifiable stake in the suit by virtue of their alleged occupation of the suit property, the suit has now been finally determined. Their Joinder as interested parties at this stage will be an exercise in futility in adjudicating the suit. As the Court of Appeal held in JMK v MWM & another [2015] KECA 524 (KLR):“We would however agree with the respondent that Order 1 Rule (10)(2) contemplates an application for amendment or joinder of parties where proceedings are still pending before the Court. Sarkar’s Code, (supra) quoting as authority, decisions of Indian Courts on the provision, expresses the view that an application for joinder of parties can be filed only in pending proceedings. In the same vein, the Court of Appeal of Tanzania, while considering the equivalent of Order 1 Rule 10(2) of our Civil Procedure Rules, in TANG GAS DISTRIBUTORS LTD V. SAID & OTHERS [2014] EA 448, stated that the power of the court to add a party to proceedings can be exercised at any stage of the proceedings; that a party can be joined even without applying; that the joinder may be done either before, or during the trial; that it can be done even after judgment where damages are yet to be assessed; that 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.” 19.In my opinion, joinder at this stage is deemed inappropriate because, as deposed by Daniel Mukiri, Director of Survey and GIS at the County Government of Nyeri, in his reply affidavit sworn on 23rd June 2025, the issuance of certificates of title concerning the subdivision of Land Parcel Number Mweiga/Gakanga/186 is at an advanced stage, with the certificates of title currently being processed. 20.If the Appellants are indeed aggrieved by the decision of the Kieni West Land Dispute Tribunal and by the subdivision process conducted by the County Government of Nyeri, then they are at liberty to file their own suit against the County Government of Nyeri. Should the Trial Court have issued an order restraining the County Government of Nyeri from interfering with the subdivided plots and canceling them to revert to L.R No. Mweiga/Gakanga/186? 21.The Appellants herein petitioned for an injunction to prohibit the County Government of Nyeri from meddling with the subdivided plots, as well as a ruling to annul the subdivision, thereby restoring the designated parcel to L.R No. Mweiga/Gakanga/186. 22.As previously discussed, the decision of the Land Disputes Tribunal, which has been adopted as an order of the Court, is nearing the final stages of implementation. It is not permissible to reverse this decision after a judgment has been issued. Such an action would be tantamount to reopening the case, rehearing the suit, and subsequently overturning the original judgment, which is not feasible because the trial court has become functus officio. 23.In the case of Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR, the Supreme Court of Kenya rendered the following decision concerning the doctrine of functus officio:“Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept:“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 a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”This principle has been aptly summarized further in Jersey Evening Post Limited v. A1 Thani [2002] JLR 542 at 550:“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 finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.” 24.The Appellants claim in their Memorandum of Appeal that they are entitled to the land they occupy by virtue of adverse possession, which they have held since the 1980s. Again, this issue cannot be raised once a case has been closed by judgment, and it would require them to file a fresh claim rather than raise it in the suit before the trial court. 25.From the foregoing, the Trial Court did not err in dismissing the Appellants’ application dated March 2024, 2024. Consequently, it is my finding that the Appeal herein lacks merit. Costs 26.As costs follow the events, the Appellants will be the costs of this appeal. DATED, SIGNED, AND ELECTRONICALLY DELIVERED IN NYERI ON THE 11TH DAY OF JUNE, 2026.E. K. MAKORIJUDGEIn the presence of:Mr.Francis the 2nd Appellant (in person)Ms. Nyawira for the 4th RespondentDenis: Court Assistant