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ELCDismissedNot stated in the judgment

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)

Environment and Land Court
6 July 2022
2,985 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Machakos (A. Nyukuri, J) dealt with a Notice of Motion dated 11th February 2021 by an intended Interested Party seeking enlargement of time to file pleadings and vacation of the court's directions of 26th February 2019 barring him from participating in the proceedings, and the 1st Defendant's preliminary objection dated 3rd November 2021. The Applicant, claiming to represent squatters of the former Emma farm holding land parcel L.R. 848/3, blamed his former advocates for failing to file pleadings within the 21 days allowed on 10th December 2018 and for not informing him of the barring order. The 1st Defendant opposed, arguing that judgment had been delivered on 25th September 2020, that the court was functus officio, and that only execution or review proceedings could be entertained. The court held that the application was not incompetent under Order 9 Rule 9 since the new advocates came on record before judgment, but that the court was functus officio: final judgment stood on record, the Applicant had not sought to set aside, vary or review it, and pleadings could not be filed after judgment. The Applicant also failed to explain a 20-month delay after his new advocates came on record in June 2019, and the court reiterated that a litigant cannot hide behind an advocate's indolence. Applying the Salat principles, the application was dismissed with costs to the 1st Defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether this court is functus officio in respect to the application filed.
  3. 3.Whether the Applicant has met the threshold for extension of time.

Key legal issues

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01

Whether the application was incompetent for failure to comply with Order 9 Rule 9 of the Civil Procedure Rules

Holding

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.

Reasoning

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.

p. 4
02

Whether the court is functus officio

Holding

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.

Reasoning

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.

p. 6
03

Whether the Applicant met the threshold for extension of time

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 11th February 2021 is dismissed for being unmeritorious.
  2. 2.Costs of the application awarded to the 1st Defendant.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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.

p. 5

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.

p. 6

Costs

Costs of the application awarded to the 1st Defendant.

Quotable passages

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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.
p. 6Final orders - dismissal of the application
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.
p. 6Functus officio doctrine
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.
p. 5Limits of the 'mistakes of counsel' principle
In my considered view, a delay of 20 months without any explanation is unreasonable and cannot be excused.
p. 5Extension of time - unexplained delay

Issues in the judgment

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minor

The date of the final judgment is given inconsistently within the judgment

minor

The case number of this suit is not stated anywhere in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.