https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1010

Makara v Kirichiu & 7 others (Civil Appeal (Application) 76 of 2020) [2026] KECA 1010 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1010 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal (Application) 76 of 2020 S ole Kantai, P Nyamweya & A Ali-Aroni, JJA May 29, 2026 Between Stanley Kirichu Makara Applicant and Joel Kobia Kirichiu 1st Respondent Harriet Mwendwa Moses 2nd Respondent Teresia Kanana Moses 3rd Respondent Jerica Kiritu Kirichu 4th Respondent Hellen Karimi Moses 5th Respondent Jacob Murangiri Moses 6th Respondent Magdalene Mami Kirichu 7th Respondent Peter Mugaa Kirichu 8th Respondent (Being an application for review of the Judgment of the Court of Appeal in Nyeri (Lesiit, Ali-Aroni & Odunga, JJ.A.) delivered on 4th July 2025 in Civil Appeal No. 76 of 2020) Ruling 1.Before the Court is an application by way of notice of motion dated 29th July 2025, brought pursuant to sections 3, 3A and 3B of the Appellate Jurisdiction Act, rules 5(2)(b), 33, 37(1), 43, 44 and 49 of the Court of Appeal Rules, 2022 (‘the Rules’) and Articles 10, 25(c), 48, 50 & 159 of the Constitution. Prayers 1 & 2 of the application, seeking an order of stay and/or maintenance of the status quo pending hearing of the application, have been overtaken by events. The only relevant prayer left for consideration is the one seeking re-opening and reviewing the judgment delivered by this Court on 4th July 2025. 2.The application is predicated on the grounds that the applicant’s family has been utilising one acre of land on LR. No. Ithima/Ntunene/1723 (hereinafter referred to as ‘the suit property’) since 1979; and they have carried out extensive developments and farming activities thereon. Further, the implementation of the rectified grant, which was the subject of appeal, will lead to the demolition of the applicant’s properties; the applicant and his family hold significant economic and sentimental value in the suit property, and the respondents have vowed to subdivide and to sell the same to third parties, which will result in the applicant and his family being forcibly evicted. 3.The application is further supported by the applicant’s affidavit, sworn on 29th July 2025, wherein he states that he seeks to reopen and review the judgment of this Court that was delivered on 4th July 2025, where his appeal was dismissed on grounds of non-disclosure that he had been gifted Parcel Nos. 1727 and 1728 by his late father, which was not the case, as he obtained the two parcels through Succession Cause No. 499 of 2011. Had the Court considered that he was not gifted the two parcels of land inter vivos, it would have arrived at a different conclusion and allowed the appeal. 4.He claimed further that in the judgment delivered on 30th May 2019, the two parcels of land given to him at the confirmation of the grant were taken away from him, and he only remained with the suit property; the said judgment was later reviewed and a rectified grant issued, where he was allocated only 0.2 acres of the suit property. He deposed further that he is entitled to at least one acre out of the suit property, which he has been utilizing since 1979 to-date, and which he developed significantly; the others who utilize the suit property are the 1st and 4th respondents who utilize 0.20 acres and 0.30 acres respectively; while the 2nd, 3rd, 5th & 6th respondents (all of whom are children of the applicant’s late brother, Moses Ithabu Kiriciu) collectively utilize 0.50 acres; while the 7th and 8th respondents do not utilize the suit property at all. He asserted that the relief sought will not prejudice the respondent; the application was filed promptly and without unnecessary delay, and it is in the interest of justice that judgment be reopened and reviewed. 5.In the replying affidavit, sworn by the 1st respondent on 7th August 2025, on his behalf and that of his co-respondents, he avers that the application is misconceived and an abuse of the court process, intended to disinherit other beneficiaries and that the applicant’s counsel, now on record, took over the appeal without due process. In regard to the application, he avers that upon delivery of a final judgment, a court becomes functus officio, and that only clerical errors can be rectified; further, the grounds presented by the applicant do not meet the criteria for exceptional circumstances that would justify the Court's residual jurisdiction, and a losing party must accept the court's decision and refrain from endless litigation. 6.In response to paragraphs 5 -14 of the supporting affidavit, the respondent stated that the information therein is false and misleading; the applicant is being dishonest, as he was adequately provided for during the deceased's lifetime, and is acting out of greed to disinherit other beneficiaries. The application lacks merit and should be dismissed with costs. 7.Learned counsel for the applicant filed submissions dated 17th November 2025 and rehashed the contents of the application and the supporting affidavit. Counsel further submitted that the applicant is seeking to invoke the Court’s residual jurisdiction to re-open and review a judgment delivered on 4th July 2025. Counsel argued that the Court can re-open a decided case in exceptional circumstances involving fraud, where a case is a nullity, where a court lacked jurisdiction, or where there was fundamental irregularity. In support, he cited AVH Legal LLP vs. Raballa & 8 Others (Civil Appeal (Application) 117 of 2018) [2023] KECA 232 (KLR). 8.Counsel contended that the core of the applicant's argument is that the judgment subject of the application was based on a factual error in the distribution of the deceased’s estate, in that the Court found that the applicant was adequately provided for, as the deceased had given him two parcels of land during his lifetime. However, the parcels were actually distributed to him after the deceased's death as part of the intestate estate, and since he did not receive land during the deceased's lifetime, as his siblings did, the current distribution is inequitable. 9.Counsel further contended that the applicant and his family have occupied and developed a one-acre portion of the suit property since 1979 without objection from his siblings. However, the court awarded him only 0.20 acres, which will affect his family's long-term development. He urged the court to reconsider the judgment to better reflect the true land ownership history and to ensure justice and harmony in the family. 10.Learned counsel for the respondents filed submissions and a case digest, both dated 21st November 2025, in opposition to the application, submitting that the application is meritless, procedurally defective, and an attempt to disinherit other beneficiaries. Counsel contended that the request for review of the judgment is legally unfounded under the doctrine of functus officio, as the Court cannot reopen judgments unless to correct clerical or arithmetical errors, which is not applicable in this case. Counsel further contended that the application is an attempt to re-litigate substantive issues. 11.Regarding the property, counsel submitted that long-term occupation and sentimental attachment alluded to by the applicant cannot override the interests of other beneficiaries; the application is an abuse of court process, brought in bad faith to delay the distribution of the estate, and ought to be dismissed with costs. 12.As pointed out earlier in this ruling, the only issue for consideration is whether a case has been made out for the re- opening and reviewing of the Court’s judgment that was delivered on 4th July 2025. 13.The general rule is that a court becomes functus officio once it delivers a final judgment. Indeed, this Court in Telkom Kenya Ltd vs. 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), emphasized the need that litigation to come to an end, and that courts must guard against abuse of process where parties seek to reopen matters that have been conclusively determined. The Court stated:“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.” 14.To every general rule there are exceptions, and in circumstances that are exceptional, this Court will exercise its residual power to re-open and review its own final judgment to avert a miscarriage of justice. The power is exercised with extreme caution to ensure that litigation reaches finality and to maintain continuity of public confidence in the litigation process. Secondly, to avert a litigant from having a second bite at the cherry, so to speak, because he is aggrieved by the outcome at hand. 15.In AVH Legal LLP vs. Raballa & 8 Others (supra), this Court had this to say on finality of judgments:31.A useful starting point is to underscore the established principle that once a court has pronounced a final Judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that the court thereupon becomes functus officio, its jurisdiction in the case having been fully and finally exercised, its authority over the subject- matter ceases. The particular type of finality that concerns us here is the finality that attaches when appellate process has run its course. This type of finality is important because it marks the point at which a case outcome is no longer routinely subject to revision or appeal.31.Finality of Judgments is a concept (or, a legal principle), according to which the decision taken by the court at some point becomes permanent, immutable, binding and open to enforcement. It cannot be disputed again, the parties may not lodge similar claims and give another interpretation to the established facts in subsequent proceedings on an interrelated matter. (See Ladd v Marshall [1954] 3 All ER 745, [1954] 1 WLR 1489, an example of a fundamental principle of the common law that the outcome of litigation should be final). 16.In AVH Legal LLP vs. Raballa & 8 Others (supra), the Court elaborated factors that ought to be considered when the Court is called upon to re-open and review a judgment by referring to Amalgamated Trustees Ltd vs. Associated Discount House Ltd [2007] LPELR-454 (SC), where the Nigerian Supreme Court appreciated that though it possessed the inherent power to set review its judgment in appropriate cases like other Superior Courts, it would only do so in instances such as; -i.When a Judgment is obtained by fraud or deceit, orii.When the Judgment is a nullity, such as when the court itself was not competent; oriii.When the court was misled into giving Judgment under a mistaken belief that the parties had consented to it; oriv.When Judgment was given in the absence of jurisdiction; orv.Where the procedure adopted was such as to deprive the decision or Judgment of the character of a legitimate adjudication.” 17.The applicant herein has not demonstrated fraud or deceit in the procurement of the judgment, nor claimed that the Court acted outside jurisdiction and therefore the judgment is a nullity, or the Court was misled, or that improper procedure was adopted. It appears that the applicant is aggrieved and dissatisfied with the outcome of his appeal. This Court has repeatedly held that dissatisfaction with the outcome of an appeal is not a ground for reopening a concluded judgment, and secondly, the court cannot sit on appeal against its own judgment. 18.As it were, courts exist to resolve disputes, not to perpetuate them in perpetuity. In Muchanga Investments Ltd vs. Safaris Unlimited (Africa) Ltd & 2 Others [2009] KECA 453 (KLR), this Court held that the Court must protect its processes from abuse and must not allow parties to litigate endlessly through creative applications. 19.We therefore find that this application has not met the threshold for review, and it is an invitation to this Court to sit on appeal over its own judgment. In the premises, we dismiss the application with costs to the respondents. DATED AND DELIVERED AT NYERI THIS 29TH DAY OF MAY, 2026.S. ole KANTAI..................................JUDGE OF APPEALP. NYAMWEYA..................................JUDGE OF APPEALALI-ARONI..................................JUDGE OF APPEALI certify that this is a true copy of the original.Deputy Registrar.