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ELCDismissedELC No. 21 of 2011

Mungai v Njoroge & 2 others (Environment and Land Case 21 of 2011) [2025] KEELC 6220 (KLR)

Environment and Land Court
25 September 2025
1,072 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Ochieng J) determines the Applicant James Wakibi Mungai's Notice of Motion dated 27th November 2024, seeking cancellation of entries transferring land parcels Kiambaa/Ruaka/3257 to 3259 to the name of Njoroge Njabi (deceased), and the Respondents' Notice of Preliminary Objection dated 17th December 2024. Judgment had been entered in the suit on 13th October 2017 (Gacheru J), authorising the Deputy Registrar to sign transfer forms, and the Applicant had lodged Civil Appeal No. 349 of 2019 in the Court of Appeal. The Applicant complained that the 1st Respondent transferred the suit parcels back to Njoroge Njabi (deceased) without involving him or requiring return of the Certificates of Title he holds. The Respondents objected that the application offended Section 7 of the Civil Procedure Act, that the Court was functus officio having delivered final judgment, and that any stay of execution pending appeal lay with the Court of Appeal. Relying on Mukisa Biscuits and Telkom Kenya v John Ochanda, the court framed a single issue: whether it should cancel the impugned entries. It held that the prayers sought a review of the implementation of the judgment, which an appellant cannot pursue; that the Court was functus officio; and that any stay application belonged in the Court of Appeal. The preliminary objection was allowed, the application dismissed with costs.

Questions the Court framed

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

  1. 1.Whether this Court should cancel entries transferring land parcels Kiambaa/Ruaka/3257 to 3259 to the name of Njoroge Njabi (deceased)

Key legal issues

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Whether the Court is functus officio and barred by Section 7 of the Civil Procedure Act from cancelling the transfers effected pursuant to the judgment of 13th October 2017

Holding

Yes; the preliminary objection succeeds and the application is dismissed

Reasoning

Judgment was entered on 13th October 2017 and an appeal (Civil Appeal No. 349 of 2019) is pending in the Court of Appeal. The applicant's prayers amount to a review of the implementation of the judgment, which a party who has appealed cannot pursue. Relying on Mukisa Biscuits and Telkom Kenya, the court held it functus officio and barred by Section 7, and that any stay application lay in the Court of Appeal.

p. 3

Legal principles established

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  • A court that has rendered a final decision is functus officio and cannot set aside its own orders, particularly where an appeal is pending; a party who lodges an appeal cannot seek review of the same orders in the trial court
  • Where a party wishes to stay execution of a judgment while an appeal is pending, the application lies in the appellate court

Court orders

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  1. 1.The Notice of Preliminary Objection dated 17th December 2024 is allowed
  2. 2.The Applicant's Notice of Motion application dated 27th November 2024 is dismissed with costs

The bench

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

Wrote the judgment

Jurisdiction invoked
Original land jurisdiction of the Environment and Land Court; ruling arises in ELC No. 21 of 2011 in which judgment was entered on 13th October 2017

Relief refused

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Cancellation of entries transferring land parcels Kiambaa/Ruaka/3257 to 3259 to the name of Njoroge Njabi (deceased)

The Court is functus officio, the application offends Section 7 of the Civil Procedure Act, and a party who has lodged an appeal cannot seek review of the orders appealed against; any stay should be sought in the Court of Appeal

p. 3

Costs

The Notice of Motion application was dismissed with costs (costs to the Respondents)

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.

In the foregoing, I find the instant Notice of Preliminary Objection merited and will allow it. I however find the instant Notice of Motion application unmerited and will dismiss it with costs.
p. 3Final orders - dismissal of the application and allowance of the preliminary objection
It is trite that where a party lodges an appeal, it cannot seek for review of the said orders.
p. 3Bar on seeking review where an appeal is pending
I opine that if the Applicant wanted orders for stay of execution, he should have sought for the same before the Court of Appeal and not in this Court.
p. 3Forum for stay of execution pending appeal
Functus oficio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.
p. 3Functus officio doctrine (as adopted from Telkom Kenya)

Issues in the judgment

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minor

The application is variously dated 17th November 2024 and 27th November 2024 in the judgment

minor

Party description discrepancy: the title of the application does not reflect the parties as named in the judgment in ELC No. 21 of 2011

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, "Mungai v Njoroge & 2 others (Environment and Land Case 21 of 2011) [2025] KEELC 6220 (KLR)", Case Analysis (2025). ELC No. 21 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6220/eng@2025-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.