Otiende & 5 others v Dache & 4 others (Land Case Appeal E032 of 2024) [2026] KEELC 2883 (KLR)
The bottom line
#The Environment and Land Court in Kisumu confirmed that Kenyan courts can hear applications to set aside judgments they have already delivered, and returned this land dispute for a full hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court misapplied the doctrine of functus officio in striking out the Appellants' application dated 5th June, 2024
- 2.Whether the trial court erred in failing to exercise its discretion judiciously by striking out the application
- 3.Whether the trial court's decision infringed on the Appellants' right to be heard
Key legal issues
#Whether the trial court erred in holding it was functus officio
The trial court misapplied the doctrine of functus officio because the application sought setting aside of the judgment, not a merit-based re-engagement with it
The functus officio doctrine bars a court from revisiting its decision on the merits, but preserves residual jurisdiction over post-judgment applications including stay of execution, setting aside, slip-rule corrections and execution. The Appellants' application was anchored on the ground that they were affected parties who were never notified of the suit and never heard before judgment. The trial court never heard the application on its merits, so it failed to exercise its discretion judiciously.
The appropriate appellate remedy where the trial court declined to hear an application
The proper course was to remit the application to the trial court for hearing and determination on merit under section 78 of the Civil Procedure Act
Under section 78 of the Civil Procedure Act an appellate court may determine a case finally, remand it, frame issues, take additional evidence or order a new trial. Since the trial court never heard the application at all, having held it was functus officio, the appeal court found it a proper case to return the matter to the trial court to exercise its discretion and hear the application on the merits.
Legal principles established
#- The doctrine of functus officio does not bar a court from entertaining post-judgment applications such as an application to set aside judgment; it only bars merit-based re-engagement with a decided case
Court orders
#- 1.The ruling of the trial court dated 11th June 2024 is set aside
- 2.The matter is returned to the trial court for hearing and determination of the application dated 27th May 2024 on merit
- 3.Costs are awarded to the Appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kisumu
- Kisumu CM ELC No. 266 of 2018
- Jurisdiction invoked
- First appeal under section 78 of the Civil Procedure Act
Relief refused
#Joinder of the Appellants to Kisumu ELC No. 266 of 2018 and hearing de novo
The court remitted the application to the trial court rather than granting substantive relief itself
Costs
Costs are awarded to the Appellants
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 present case, as the application before the court was an application for setting aside the judgment, the doctrine of functus officio was not applicable.
I respectfully find that the trial court misapplied the doctrine of functus officio, failed to exercise its discretion judiciously, and thus failed to determine the application before it on the merits.
i. The ruling of the trial court dated 11th June 2024 is set aside. ii. The matter is returned to the trial court for hearing and determination of the application dated 27th May 2024 on merit. iii. Costs are awarded to the Appellants.
Issues in the judgment
#Conflicting dates for the trial court's ruling: the judgment elsewhere states it was delivered on 12th June, 2024, but the Memorandum of Appeal and final orders refer to 11th June, 2024
The Memorandum of Appeal is dated 11th June, 2024, a day before the ruling it appeals against as elsewhere stated (12th June, 2024)
Typographical error in the Memorandum of Appeal giving the judgment date as 31st May, 2025 instead of 31st May, 2023
Inconsistent dates for the application before the trial court: described as a Notice of Motion dated 27th May, 2024 in the narrative and final orders, but as an application dated 5th June, 2024 in the grounds of appeal and submissions
Memorandum of Appeal seeks joinder only of the 1st and 2nd Appellants although six Appellants appear in the appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otiende & 5 others v Dache & 4 others (Land Case Appeal E032 of 2024) [2026] KEELC 2883 (KLR)", Case Analysis (2026). ELCL Appeal No. E032 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2883/eng@2026-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.