https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3611

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MALINDI** **ELCA CASE NO. E057 OF 2024** **GRACE WANJIKU MWANGI……………………………………………..1ST APPELLANT** **CHRIS MWANGI GICHEMI………………………………………………2ND APPELLANT** **VERSUS** **SHAMBA LAND AGENCIES LIMITED ……………………………………RESPONDENT** ***(****Being an appeal of the ruling delivered on 25th September, 2024 by Hon James Ongondo in Malindi CMELC E082 of 2022 as consolidated with CMELC E083 of 2023****)*** **JUDGMENT** Being dissatisfied with the Ruling of the Honourable Senior Principal Magistrate Hon James Ongondo delivered on the 25th September, 2024 in Malindi CMELC E082 of 2022 and CMELC E083 of 2022, the appellants appeal to this court against the whole ruling on the following grounds: 1. *The Learned Trial Magistrate erred in law and fact by varying its judgments delivered on 24th July, 2024;* 2. *The Learned Trial Magistrate erred in law and fact in implying a mistake by Respondent’s counsel on an issue that was substantively addressed during trial;* 3. *The Learned Trial Magistrate erred in law and fact by departing from the evidence adduced during trial without good reason;* 4. *The Learned Trial Magistrate erred in law and fact for re-writing the Sale of Land Agreement post judgment between the Appellant and Respondent dated 11th April 2019 and 25th April 2019;* 5. *The Learned Trial Magistrate erred in law and fact in ruling that there was a mistake and an error apparent on record in that the purchase price was inclusive of the title deed fees;* 6. *The Learned Trial Magistrate erred in law and fact by varying the evidence of the Respondent herein at the prejudice of the Appellant;* 7. *The Learned Trial Magistrate erred in fact and law by failing to consider the rules laid down for the jurisdiction and scope of review of court orders thereby arriving at a wrong decision.* **T**he Appellants pray for the following orders: 1. *That this Honourable Court allows this appeal and varies the ruling of the trial court in Malindi CM ELC E082 and E083 of 2022 delivered on 25th September, 2024 in its entirety and reinstates the Judgments of the Trial Court delivered on 24th July 2024;* 2. *That this Honourable Court makes further orders towards the end of justice;* 3. *That costs be awarded to the Appellants.* The background to the present appeal is that the appellants sued the respondent in two different pieces of litigation to wit *Malindi CM ELC E082* and *E083 of 2022* in which a consolidated two paged judgment was delivered on 24th July 2024. In its decision, the court found that there was an admission that the consideration had been fully paid; that no *viva voce* evidence can be adduced to vary the terms of a written agreement; *that the “KES 20k” demanded by the respondent before issuance of title deeds is not provided for in the sale agreements and can not be lawfully demanded by the respondent as a condition to issue certificates to the appellants;* that to allow such a claim would be to sanction a unilateral; re-writing of the agreements; that the document that the respondent ought to have given to the appellants is a certificate of title under Section 26 of the “relevant statute”. The trial magistrate held that the appellants had proved their case on a balance of probabilities and started as follows: *“The suit is successful and I proceed to grant the orders sought in the plaint with costs that is to say inter alia the defendant is ordered to issue the plaintiffs with certificates of title envisaged under Section 26 of the Land Registration Act 2012 without any conditions or demand for more money. The plaintiffs shall have the costs of the suit.”* After judgment, an application was lodged with the trial court, dated **31/7/2024** seeking the following principal orders: 1. *That the court do review /vary and/or set aside in its entirety the judgment and decree issued on the 25th July 2024 and in lieu thereof replacing the same with an order ordering the plaintiffs to pay a sum of kenya shillings twenty thousand (Kshs 20,000/=) being the fees for processing each title deed in exchange for the original title deeds in their names;* 2. *That the costs of the application be provided for.* Both appellants filed their replying affidavits dated **9th August 2024** in opposition to the motion as well as written submissions dated **12/8/24**. A two-page ruling was delivered on **25th September 2024.** The court stated as follows in its ruling: *“It is clear from the pleadings that the plaintiffs purchased the plot (sic) for Ksh 100,000/= each and as such there is no indication that the said purchase price was inclusive of the fee for the title deed. The court was misled by defence counsel who kept saying that the titles were ready without indicating fees was required for the defendant to supply the title deeds. The mistake was fueled by the plain tiffs who sought orders for completion document to their plaint. It is therefore crystal clear to me that there is a mistake and/or error apparent on the face of the record to the effect that the purchase price was inclusive of the title deed fees. It is in the interests of justice that the error be and is hereby corrected and the said judgment is hereby reviewed to the extent that the plaintiffs ought and are hereby ordered to pay the Ksh 20,000 for the defendant to issue title deeds as the land had not been subdivided before purchase. The subdivision and processing of title deeds is an extra expense not included in the purchase price.”* That is the ruling that has spawned the present appeal. It has been submitted by counsel for the appellant that there was no error or mistake apparent on the face of the record; that the court reviewed the judgment on the basis that it was grossly misled by the plaintiff into believing that the sale agreements dated 11th April 2019 and 25th April 2029 provided that the purchase price therein was inclusive of title deed processing fees, which ground does not, according to the appellants, meet the threshold for review under the relevant law. Counsel cited the case of *R Vs Advocates Disciplinary Tribunal, Ex Parte Appollo Mboya 2019 eKLR* and asserted that an erroneous order or decision can not be corrected in the exercise of power of review; that the review impermissibly re-appraised evidence, akin to an appeal, which is prohibited; that what is called title deed fees must be construed from the wording of the sale agreement; that the trial court admitted that it was misled by defence counsel; that parties are bound by their pleadings and not by submission of counsel; that the grant of the prayer that the appellants pay Kshs 20,000/= as title deed processing fees imposed a new and unpleaded condition not contemplated in the original sale agreement or the respondents’ pleadings, and that such amounts to a substantive variation of the decree contrary to the law on review. In summary, what is in issue in the present appeal is whether the Magistrate’s decision in the impugned ruling violated the doctrine of *functus officio*. In law after a court delivers judgment on the merits of a case it becomes *functus officio.* In the case of *Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) (Civil Appeal 60 of 2013) [2014] KECA 600 (KLR) (9 May 2014) (Judgment)* it was stated as follows: *“21. 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. It is a doctrine that has been recognized in the common law tradition from as long ago as the latter part of the 19th Century. In the Canadian case of Chandler Vs Alberta Association Of Architects [1989] 2 S.C.R. 848, Sopinka J. traced the origins of the doctrines as follows (at p. 860);* *22.The general rule that a final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal In re St. Nazaire Co., (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:* *23.Where there had been a slip in drawing it up, and, where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186 ”The Supreme Court in Raila Odinga v IEBC 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 in which the learned author stated;...“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.* *24.The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions and these have been captured thus in Jersey Evening Post Ltd Vs Ai Thani [2002] JLR 542 at 550, also cited and applied by the Supreme Court;* *25.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 or adjudication must be taken to a higher court if that right is available.””* In this court’s view, the original judgment of the learned Trial Magistrate held that the purchase price was fully paid and was inclusive of entitlement to title without further demands; the judgment of the court showed that the court considered the evidence before it and conducted a merit assessment thereon and arrived at the rationalized conclusion that the defendant should issue the plaintiffs with certificates of title envisaged under Section 26 of the Land Registration Act 2012 without any conditions or demand for more money. It is clear from the lower court’s judgment that the issue of whether or not fees for title processing had been dealt with in substance on the basis of the evidence before the court, and that the court had found that no such fees were payable. That the court itself conceded that it was persuaded by counsel, either for the appellants or for the respondent in one way of the other on that issue, goes further to demonstrate that it considered the issue in depth and that what it gave thereafter was a merit decision that did not warrant a review but an appeal. The court thus became *functus officio* and unable to issue the kind of orders it issued on 25th September, 2024. Consequently, this court is of the view that the present appeal has merit and the same is allowed and this court issues the following final orders: 1. *This appeal is allowed and the ruling of the trial court in Malindi CM ELC E082 and E083 of 2022 delivered on 25th September, 2024 is hereby set aside in its entirety and the Judgment of the Trial Court delivered on 24th July 2024 is hereby reinstated;* 2. *The costs of the present appeal are hereby awarded to the Appellants.* **Dated, signed and delivered at Malindi on this 11th June 2026.**  **MWANGI NJOROGE** **JUDGE, ELC MALINDI.**