Mungai v Njoroge & 2 others (Environment and Land Case 21 of 2011) [2025] KEELC 6220 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#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
Yes; the preliminary objection succeeds and the application is dismissed
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.
Legal principles established
#- 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
#- 1.The Notice of Preliminary Objection dated 17th December 2024 is allowed
- 2.The Applicant's Notice of Motion application dated 27th November 2024 is dismissed with costs
The bench
#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
#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
Costs
The Notice of Motion application was dismissed with costs (costs to the Respondents)
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.
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.
It is trite that where a party lodges an appeal, it cannot seek for review of the said orders.
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.
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.
Issues in the judgment
#The application is variously dated 17th November 2024 and 27th November 2024 in the judgment
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.