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ELCPartially AllowedNot stated on the ruling (Mombasa Environment and Land Court)· [2026] KEELC 2361 (KLR)

Mwanjemo & 5 others v Kagiri & 9 others (Environment and Land Case 6 of 1972) [2026] KEELC 2361 (KLR)

Environment and Land Court of Kenya
24 April 2026
AOANTONY O. OMBWAYO
4,240 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Mombasa Land Court set aside a 2014 land judgment because people affected by it were never heard, restarting the case.

What this practically means

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Executive summary

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This ruling of the Mombasa Environment and Land Court (Antony O. Ombwayo, J) determined three consolidated applications dated 3rd September, 11th September and 15th September 2025, filed by persons who were not parties to a suit in which judgment was delivered on 15th May 2014. The Applicants, who claimed to be registered owners of sub-divisions of the suit property acquired as innocent purchasers for value, sought review and setting aside of the 2014 judgment, the decrees extracted therefrom, subsequent orders of 2024 and 2025, warrants of eviction, and cancellation of titles issued pursuant to the judgment. The Plaintiffs opposed, arguing the judgment had been executed and the court was functus officio, that the Applicants' titles traced from fraudulent transactions entered into in contempt of injunction orders and contrary to lis pendens, and that the sellers of the land had been heard. Monica Wanjiru Mburu, administrator of the 2nd Defendant's estate, did not object. The court framed one issue: whether it should set aside or review the judgment of 15th May 2014, the resulting decrees and all consequential orders. Applying Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act, and considering the functus officio doctrine as explained in the Odinga and Telkom Kenya cases, the court held that the Applicants ought to be heard notwithstanding that the 1st Defendant was already a party. The court set aside the judgment of 15th May 2014, the decree extracted therefrom, and the orders of 11th and 12th June 2025, directed the parties to file and serve trial bundles for a fresh hearing on 21st to 24th July 2026, fixed mention for 13th May 2026, and ordered each party to bear their own costs of the applications.

Key legal issues

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Whether the court should set aside or review the judgment of 15th May 2014, the resulting decrees and all consequential orders

Holding

The court held that the Applicants, though not originally joined, ought to be heard; the judgment, decree and consequential orders of June 2025 were set aside and the matter listed for fresh hearing.

Reasoning

The court considered Order 45 Rule 1 and Section 80 of the Civil Procedure Act on review, and the functus officio doctrine relied on by the Plaintiffs, noting that the doctrine provides finality but does not prevent the court from correcting matters where persons affected were not heard. The Plaintiffs argued lis pendens, fraudulent titles, and that the sellers of the Applicants were heard. The court nevertheless found that the Applicants could not be denied a hearing simply because the 1st Defendant was a party, and that the Plaintiffs could not claim joinder was unnecessary.

p. 8

Legal principles established

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  • A party affected by a judgment who was not heard before it was rendered ought to be heard, and the judgment and consequential orders can be set aside to allow that hearing.
  • The functus officio doctrine does not bar setting aside a judgment where persons affected were not heard; review is available under Order 45 and Section 80 of the Civil Procedure Act.

Court orders

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  1. 1.The Judgment dated 15th May, 2014, the Decree extracted therefrom, and the Orders given on 11th June, 2025 and issued on 12th June, 2025 in the matter are hereby set aside
  2. 2.The parties shall file and serve their trial bundles and the court shall hear the matter on 21st, 22nd to 24th July 2026
  3. 3.Mention on 13th May 2026 for further directions
  4. 4.Each party shall bear their own costs in respect of the applications dated 3rd September, 2025, 11th September, 2025 and 15th September, 2025
Jurisdiction invoked
Order 45 Rule 1(1) of the Civil Procedure Rules, 2010 and Section 80 of the Civil Procedure Act

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, "Mwanjemo & 5 others v Kagiri & 9 others (Environment and Land Case 6 of 1972) [2026] KEELC 2361 (KLR)", Case Analysis (2026). Not stated on the ruling (Mombasa Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2361/eng@2026-04-24

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