Nzyoki, Muinde & Kyele (Suing for and on behalf of and as the Chairman, Secretary and Treasurer of Kiliku Savings Scheme S.H.G) v Gatatha Farmer Co-op Society Ltd & another; Murinda (Intended Interested Party) (Environment & Land Case 101 of 2012) [2022] KEELC 3439 (KLR)
The bottom line
#The court refused to let a late-joining party back into a concluded land case, ruling that unexplained delay and a final judgment leave it no power to intervene.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application is incompetent for having been filed by an Advocate who had not obtained leave to come on record for the Interested Party.
- 2.Whether this court is functus officio in respect to the application filed.
- 3.Whether the Applicant has met the threshold for extension of time.
Key legal issues
#Whether the application was incompetent for failure to comply with Order 9 Rule 9 of the Civil Procedure Rules
The application was not incompetent; the new advocates came on record on 6th June 2019, before judgment was entered on 25th September 2020, so no leave was required.
Order 9 Rule 9 requires court leave or consent for a change of advocate only after judgment has been passed. Since the Notice of Appointment by Billy Amendi & Company Advocates was filed before the judgment of 25th September 2020, the provision did not apply and the objection on that ground failed.
Whether the court is functus officio
Yes. Final judgment was delivered on 25th September 2020, no review or setting aside of the judgment was sought, so the court could not entertain an application to reopen the matter.
Following Jersey Evening Post Limited v Al Thani as approved in ICEA Lion, the court held that once proceedings are finally concluded the court cannot review or alter its decision. The Applicant's prayers for extension of time and vacation of the barring order did not challenge the judgment itself, which remains intact on record.
Whether the Applicant met the threshold for extension of time
No. The Applicant did not explain the 20-month delay after his new advocates came on record and had squandered the opportunity to be heard granted on 10th December 2018.
Applying the Salat criteria, the court found the delay unexplained and unreasonable. Equity expects litigants to be proactive; the right to be heard is only as good as the opportunity utilized. Reopening proceedings would also prejudice the 1st Defendant who has moved on after judgment.
Legal principles established
#- A court is functus officio once it has delivered and perfected final judgment and cannot reopen the matter absent a statutory avenue such as review or appeal.
- A litigant cannot blame his advocate's indolence indefinitely; a case belongs to the litigant, who must be proactive in pursuing it.
- Extension of time is an equitable discretion governed by the Salat principles, including the requirement that delay be reasonably explained.
Court orders
#- 1.The Notice of Motion application dated 11th February 2021 is dismissed for being unmeritorious.
- 2.Costs of the application awarded to the 1st Defendant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court Act (original jurisdiction over the land dispute; application under Order 50 Rule 6 of the Civil Procedure Rules, 2010)
Relief refused
#Enlargement of time for the intended Interested Party to file his pleadings
The Applicant failed to explain a 20-month delay after learning of the barring order, and pleadings could not be filed after entry of final judgment when no prayer to set aside or review the judgment was made.
Vacation of the court's directions of 26th February 2019 barring the Interested Party from further participating in the proceedings
The court is functus officio after delivery of final judgment on 25th September 2020, and the Applicant had squandered the opportunity to be heard.
Costs
Costs of the application awarded to the 1st Defendant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that the application dated 11th February 2021 is dismissed for being unmeritorious, with costs to the 1st Defendant.
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 high court if that right is available.
A case belongs to a litigant and not their advocate, and in the event that an advocate has not updated a litigant of the status of their matter, the latter cannot sit pretty, fail to consult the advocate or the court, and later complain that the advocate has indolent.
In my considered view, a delay of 20 months without any explanation is unreasonable and cannot be excused.
Issues in the judgment
#The date of the final judgment is given inconsistently within the judgment
The case number of this suit is not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzyoki, Muinde & Kyele (Suing for and on behalf of and as the Chairman, Secretary and Treasurer of Kiliku Savings Scheme S.H.G) v Gatatha Farmer Co-op Society Ltd & another; Murinda (Intended Interested Party) (Environment & Land Case 101 of 2012) [2022] KEELC 3439 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3439/eng@2022-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.