[2023] KEHC 26402 (KLR)

Wanderi v Kionga ( Now Deceased); Geshure (Applicant) (Civil Suit 495 of 1998) [2023] KEHC 26402 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26402 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Suit 495 of 1998

HM Nyaga, J

December 13, 2023

Between

Samuel Wanderi

Plaintiff

and

James Githure Kionga ( Now Deceased)

Defendant

and

Jane Njoki Geshure

Applicant

Ruling

1. The Application before me for determination is the one dated 11th November, 2021 filed by the Applicant. It is brought pursuant to Section 80(1) of the Land Registration Act, Sections 1B, 3 and 3A of the Civil Procedure Act and Order 51 Rule (1) of the Civil Procedure Rules.

2. The Applications seeks for orders: -1. Spent2. Spent3. That the court does order that the subdivision of Dundori/Mugwathi Block 2/47 by the plaintiff/Respondent is null and void and consequently the court does order cancellation of parcels title numbers Dundori/Mugwathi Block 2/3070, 2/3071, 2/3072, 2/3073, 2/3074, 2/3075, 2/3076, 2/3077, 2/3078, 2/3079 and 2/3080 and the mutation form No 043877034. That the Land Registrar be authorized to cancel registration of parcels known as Dundori/Mugwathi Block 2/3070, 2/3071, 2/3072, 2/3073, 2/3074, 2/3075, 2/3076, 2/3077, 2/3078, 2/3079 and 2/3080 and the original parcel No Dundori/Mugwathi Block 2/47 be restored to the original state.5. That the costs of this application be borne by the Plaintiff/Respondent.

3. The Application is premised on grounds on its face and supported by an affidavit of the Applicant, Jane Njoki Geshure sworn on the even date. She deposed that the deceased was her husband and that he died on 19th July, 2019.

4. She averred that upon the deceased’s death she obtained limited grant of letters of administration ad litem for purposes of seeking compliance with the Court of Appeal judgement in Civil Appeal No 156 of 2012.

5. She stated that the judgement in this matter was delivered on 12th October 2012 and the subsequent appeal by the defendant before the court of appeal was delivered on 21st December 2018 in his favour.

6. She started that prior to hearing and determination of the appeal, the defendant had filed an application for injunction before the Court of Appeal vide CA No NAI 93/2012 and which application was heard and orders granted on 27th September, 2012 directing that there would be no registration of any dealings in the registrar in the land office in respect to the suit land.

7. She contended that notwithstanding the Court of Appeal order restraining any dealings with the suit land, the plaintiff/respondent in September went ahead and subdivided the suit land into 11 portions hence parcel No Dundori/Mugwathi Block 2/47 was closed and parcels titles No 2/3070, 2/3071, 2/3072, 2/3073, 2/3074, 2/3075, 2/3076, 2/3077, 2/3078, 2/3079 and 2/3080 created.

8. She deponed that plaintiff act of subdividing the defendant’s land have prejudiced the interest of the estate of the deceased.

9. She contended that the respondent keeps pestering the estate dependents concerning the suit land and this matter has severally landed before the area administration, and she is now worried that the respondent may use force to gain entry to the suit land.

10. She prayed that the orders sought be granted.

11. In opposition to the application, the Plaintiff/Respondent filed a notice of preliminary objection on the ground that the application dated 11/11/2021 is fatally defective as the applicant herein has not sought leave of court to be substituted in this proceedings.

12. He also filed a replying affidavit dated 28th April,2011 wherein he averred that the application is bad in law, frivolous and duly brought in bad faith and as such it should be dismissed.

13. He contended that he has been residing on the subject land for 27 years and he has been paying land rates all along.

14. He stated that he instituted the present suit on realizing that the applicant had fraudulently obtained a title deed in relation to the parcel land.

Applicant’s submissions 15. The Applicant urged this court to disregard the Respondent’s contention that the application is defective for reasons that: -a.The application seeking to substitute the defendant now deceased was allowed by Justice Nguigi on 23. 3.2023b.As at the time of filing this application, the pleadings regarding the issue of substitution had been regularized and as such the applicant was properly on record.c.Be that as it may, the applicant did not have to make an application to be substituted in place of the defendant now deceased owing to the fact that the suit herein had reached execution stage as provided under Order 24 Rule 10 of the Civil Procedure Rules. To this effect reliance was placed on the case of Eunice Kirunda Kinyua v Josephat Mwathi Kibiri [2018] eKLR where the court held that Order 24 Rule 10 did not require substitution in proceedings in execution of an order.d.The issue of substitution is res judicata as the court of appeal and this court had already settled the same and that entertaining the same is an abuse of the court process.

16. The applicant urged this court to find that the respondent was in blatant abuse of the court orders issued on 21/12/2018 by proceeding to subdivide the suit land into 11 portions. She urged the court to issue the orders sought. Reliance was placed on the case of Esther Wanjiru Kamau v George Chege Kamau [2017] eKLR where the court cancelled the mutation forms and subdivisions that were done in contravention of the court order.

17. The applicant urged this court to find that the said preliminary objection lacks merit and to dismiss the same with costs to her.

Respondents submissions 18. The Respondent submitted that the application herein is incompetent and ripe for striking out for reasons that by the time the application was filed the applicant did not have locus to institute it as she had not sought leave to be enjoined in the suit and had not obtained letters of administration ad litem.

19. He posited that the mere fact that the court of appeal overturned the decision of this court, is not a key to enable the applicant to confidently occupy the subject land but she should institute afresh suit seeking cancellation of the titles in question.

Analysis & Determination 20. I have considered the application herein, the rival affidavits, preliminary objection and the submissions.

21. I have also looked at the decision of the Court of Appeal in Civil Appeal No 156 of 2012. The court held as follows;“We come to the conclusion that the learned Judge erred in finding that the respondent proved his case. Consequently, we allow this appeal, set aside the judgment of the trial Judge and substitute thereof an order dismissing the suit. We award costs of this appeal to the appellant.”

22. The effect of the said judgment was, in my view to, extinguish all claims arising in this suit. There is no suit to speak of, the same having been dismissed by the Court of Appeal. It follows that this court is Functus Officio as regards the substance of the suit itself.

23. As regards the doctrine of Functus Officio, the Supreme Court of Kenya in the case of Raila Odinga & 2othersv Independent Electoral & Boundaries Commission & 3others [2013] eKLR, cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of theFunctus OfficioDoctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 which reads: -“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. In Jersey Evening Post Ltd v Ai Thani (2002) JLR 542 at 550, it was held thus:“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”.

25. As per the decision of the Court of Appeal in 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 Functus Officio doctrine does not allow “a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued.”

26. As stated this court rendered its decision. The same was appealed against and the Court of Appeal made its decision aforestated. Therefore, this court cannot be asked to look at anything to do with the matter in issue. That would be tantamount to sitting to examine the judgment of the Court of Appeal.

27. Consequently, this court downs its tools. Any issue regarding the suit property can only be handled by the Court of Appeal or other appropriate court moved in the right manner, by a fresh suit.

28. Therefore, the application is struck out with no orders as to costs.

29. Orders Accordingly.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 13TH DAY OF DECEMBER, 2023. H. M. NYAGA,JUDGE.