https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4808

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELCA NO. E007 OF 2022** **JACOB NJERU NDERI............................................APPELLANT/APPLICANT** **VERSUS** **TISIANO COSMAS MUGOH..................................................RESPONDENT** **RULING** The Notice of Motion dated 16th February 2026 seeks orders compelling the Respondent to produce the original title deed for land parcel **GATURI/GITHIMU/1775** to the Land Registrar, failing which the Land Registrar be directed to cancel the existing title and issue a new one to the Applicant. The Applicant further seeks an order authorizing the Deputy Registrar of this Court to execute all the necessary transfer documents on behalf of the Respondent. The application is premised on the grounds that the Respondent has declined to facilitate transfer of the suit property despite allegedly having lost the dispute both before the trial court and on appeal. The Applicant deposed that he settled the Respondent's indebtedness to Consolidated Bank by selling two of his own parcels of land, namely **NGANDORI/KIRIGI/14264** and **NGANDORI/KIRIGI/14268**, but that the Respondent subsequently refused to honour the transaction. He further deposed that the Land Registrar requires a court order before effecting registration in his favour since he does not possess the original title deed. The Respondent opposed the application through a Replying Affidavit sworn on 2nd April 2026. He contended that this Court is **functus officio,** having already determined the appeal by its judgment delivered on 25th November 2025. He further argued that the orders sought are substantive in nature, lack any legal foundation, are unsupported by evidence and cannot be granted through a Notice of Motion. Both parties appeared in person and elected to canvass the application through their affidavits. Having considered the application, the affidavits on record and the applicable law, the issue arising for determination is whether this Court has jurisdiction to grant the orders sought. The record of this Court leaves no doubt as to the nature of the proceedings culminating in the present application. The appeal before this Court arose from the decision of the subordinate court delivered on 19th October 2021, whereby the learned trial magistrate upheld a Preliminary Objection and struck out the suit against the 2nd Defendant, who is the present Applicant, on the ground that the suit was **res judicata**. By its judgment delivered on 25th November 2025, this Court dismissed the appeal and affirmed the decision of the trial court. The consequence of that judgment is that this Court exhausted its appellate jurisdiction in the matter. Save for the limited jurisdiction donated by law to correct clerical or arithmetical errors, interpret its decree or address matters expressly provided for under the law, an appellate court cannot reopen or revisit its final judgment. The doctrine of **functus officio** exists to ensure finality of litigation and prevent a court from exercising jurisdiction which it has already exhausted. The Supreme Court in **Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others** [2013] eKLR adopted the doctrine of functus officio and held that once a court has rendered its final decision, it lacks jurisdiction to revisit the merits of that decision except as provided by law. Likewise, in **Telkom Kenya Ltd v John Ochanda (Suing on his own behalf and on behalf of 996 Former Employees of Telkom Kenya Ltd)** [2014] eKLR, the Court of Appeal reaffirmed that once a court has finally determined a matter, it cannot reopen the case except where the law expressly permits. The Applicant's motion, although framed as one seeking consequential orders, is in substance an application for execution and enforcement of a decree allegedly arising from the proceedings before the subordinate court. The orders sought require the Court to compel production of a title deed, direct the Land Registrar to cancel an existing title and authorize execution of transfer instruments by the Deputy Registrar. Those are not appellate orders flowing from this Court's judgment dismissing the appeal. They are execution and enforcement orders relating to the decree of the subordinate court. Execution of decrees is governed by Part III of the Civil Procedure Act and Order 22 of the Civil Procedure Rules. The general principle is that a decree is executed by the court which passed it or by the court to which it is sent for execution. Section 34(1) of the Civil Procedure Act provides that all questions arising between the parties relating to the execution, discharge or satisfaction of a decree shall be determined by the court executing the decree and not by a separate suit. The decree sought to be enforced herein is not a decree passed by this Court. This Court merely dismissed the appeal and upheld the ruling of the subordinate court. Consequently, this Court did not assume the role of an executing court in respect of the subordinate court's decree. If indeed there exists a decree capable of execution and the Respondent has failed to comply with it, the proper recourse lies before the court that issued the decree or before the court lawfully seized of execution proceedings under the Civil Procedure Act and Rules. Furthermore, the orders sought by the Applicant, particularly cancellation of title and issuance of a new title by the Land Registrar, are substantive reliefs which require an appropriate legal foundation and compliance with the statutory framework governing land registration. Such orders cannot simply be issued through a miscellaneous post-judgment application filed in a concluded appeal without demonstrating the jurisdictional basis upon which the Court is invited to act. Accordingly, I find that this Court lacks jurisdiction to entertain the application, having become **functus officio**, and further that the reliefs sought amount to execution and enforcement of the subordinate court's decree, a jurisdiction which does not lie before this Court in the present appellate proceedings. In the result, the Notice of Motion dated 16th February 2026 is incompetent and is hereby struck out. Since both parties are unrepresented and the Applicant appears to have approached the Court in pursuit of enforcement of what he believes to be his rights under the subordinate court's decree, I direct that each party shall bear his own costs of the application. It is so ordered. **DATED, DELIVERED AND SIGNED AT EMBU THIS 27TH DAY OF JULY, 2026** …………………………… **HON. E.C CHERONO** **ELC JUDGE, EMBU** In the presence of; 1. Appellant/Applicant-present 2. Respondent-present 3 Ruth C/A