Makau v Malika (Environment and Land Appeal E020 of 2023) [2025] KEELC 4535 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate erred in re-determining the reinstatement of the suit already granted ex parte on 30th August 2022
The magistrate erred: reinstatement (prayer 2) had been granted on 30th August 2022, so re-determining it was functus officio; the appeal succeeds and the suit is remitted for hearing before another magistrate.
The trial court on 30th August 2022 granted prayers 1 and 2 of the application dated 12/07/2022, including reinstatement of PMCC 281 of 2013, pending inter partes hearing. The ruling of 26th September 2023 nevertheless re-determined prayer 2 and dismissed reinstatement. A court cannot sit on its own decision; only an appeal (or review) could reopen it. The respondent's failure to learn of the ex parte order was not justified since the court file was available for perusal.
Whether the trial court erred in not determining the remaining prayers after finding the suit should not be reinstated
No error - once the suit was not reinstated, the other prayers were moot and academic.
The appellant complained that the magistrate failed to determine the remaining prayers. The court held that once the suit remained dismissed for want of prosecution, determining any other issue would have been an academic exercise and not a judicious use of the court's time and resources; the remaining prayers were therefore moot.
Legal principles established
#- Once a trial court has already determined a prayer and issued orders on it, the court becomes functus officio on that prayer and it cannot re-determine it; reconsideration lies only on appeal or review.
- On a first appeal, the court must re-evaluate the evidence and draw its own conclusions, bearing in mind it neither saw nor heard the witnesses.
Court orders
#- 1.The Appeal succeeds
- 2.PMCC Kajiado 281 of 2013 is remitted back to the Lower Court for hearing and determination before another Magistrate other than Hon. E. Kagoni
- 3.Costs of the Appeal shall abide the outcome of the Lower Court's suit
- On appeal from
- Magistrates' Court at Kajiado (PMCC Kajiado 281 of 2013)
- PMCC Kajiado 281 of 2013
- Jurisdiction invoked
- First appeal against the ruling of the learned Magistrate in PMCC Kajiado 281 of 2013
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbaabu (The duly appointed Attorney of Githinji Kithinji Mwirichia) v Abdulrahman & 4 others (Environment and Land Case 319 of 2021) [2025] KEELC 7511 (KLR)[2025] KEELC 7511 (KLR)30 Oct 2025
- Havelock Lihanda v Uasin Gishu County Service Board [2015] KEELRC 1218 (KLR)[2015] KEELRC 1218 (KLR)27 Mar 2015
Cite this brief
#Cite this brief
Caselaw, "Makau v Malika (Environment and Land Appeal E020 of 2023) [2025] KEELC 4535 (KLR)", Case Analysis (2025). Appeal from PMCC Kajiado 281 of 2013 (Memorandum of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4535/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.