Ejidio Kariithi Cimba (Suing as the Legal Representative of the Estate of Moses Gachoki Kimwea (Deceased) & Njogu Njiru & others v Kirinyaga County Council, South Ngariama Ranching & Nyamu Mugera (Suing on behalf of himself and all other members of the group known as Ngucwi & Miuu Trading Company [2019] KEELC 2464 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KERUGOYA

ELC CASE NO. 59 OF 2018

EJIDIO KARIITHI CIMBA (Suing as the Legal Representative of the Estate of

MOSES GACHOKI KIMWEA (Deceased).............................................APPLICANT

NJOGU NJIRU & OTHERS...................................................................PLAINTIFFS

VERSUS

KIRINYAGA COUNTY COUNCIL................................................1ST DEFENDANT

SOUTH NGARIAMA RANCHING...............................................2ND DEFENDANT

NYAMU MUGERA (Suing on behalf of himself and all other

members of the group known as NGUCWI & MIUU

TRADING COMPANY.....................3RD INTERESTED PARTY/RESPONDENTS

RULING

BACKGROUND

Before me is the Notice of Motion dated 5th November 2018 brought under Section 1A, 1B, 3 and 3A CPA and Order 1 Rule 3 CPR.

The Applicants are seeking the following orders:

1. That the names of the 1st defendant be amended and/or rectified to read the County Government of Kirinyaga.

2. That this Honourable Court be pleased to enjoin James Kamau Murango, Apollo Njeru and Peter Murimi Kanjobe as Interested parties in this matter.

3. That the defendants be cited for contempt of Court orders given on 28th January 2009, 25th March 2009 and the 6th October 2009.

4. That this Honourable Court be pleased to issue orders of forceful eviction of all the defendants/respondents herein, their employees, agents, servants, assignees, family members and anybody else claiming to pave way for implementation and/or execution of the decree herein.

5. That the costs of this application be provided for.

The application is supported by seven (7) grounds apparent on the face of the affidavit of Ejidio Kariithi Cimba.  The application is opposed with a replying affidavit sworn by one Dan Njogu Kange for and on behalf of the 2nd Respondent.  The application is also opposed by the 1st Respondent and the 3rd Interested parties who filed grounds of opposition.

2ND RESPONDENT’S CASE

The 2nd Respondent stated that the application is frivolous, vexatious and an afterthought.  The 2nd Respondent urged that this Court delivered judgment in this matter on 2nd November 2007 and that the application herein is manifestly belated and unjustified.  It is further stated that the applicants were represented by the firm of Duncan Muyodi Advocates.  The 2nd Respondent also stated that the judgment issued by this Court is not implementable as there is no land for setting aside as the land in question had already been set aside and cannot be set aside twice.

SUBMISSIONS BY THE APPLICANT

The Applicant through the firm of C.S. Macharia & Co. Advocates submitted that the main suit herein was heard and determined and a decree issued on 2nd November 2007.   The Applicant further submitted that ever since then, he has attempted to execute the decree but the Respondents in cahoots with the Intended Interested parties have been obstructing the said execution.  The Applicant also submitted that this Court is seized with jurisdiction to entertain the present application since the orders sought are intended to assist in the execution of the decree of this Court and that this Court can only be said to be functus officio once it has discharged all its duties in perfecting the judgment of the Court.   He cited the case of JERSEY EVENING POST LTD VS AITHANI (2001) e K.L.R.

SUBMISSIONS BY THE 2ND RESPONDENT

The 2nd Respondent submitted that according to Order I CPR, a party who wishes to enjoin any person as a defendant to the ongoing suit can only do so if the suit is still pending in Court and not after the case has been heard and determined.  The 2nd Respondent further submitted that once a Court has delivered its judgment, it becomes functus officio unless it is pronouncing itself on an application for stay of execution or review.  He cited the following cases:

1. Chacha Mwita Musenda Vs Baya Tsuma Baya & 2 others (2017) e K.L.R

2. Telkom Kenya Ltd Vs John Ochanda (2014) e K.L.R.

3. Raila Odinga & 2 others Vs Independent Electoral & Boundaries Commission & 3 others ( 2013) e K.L.R.

ANALYSIS AND DETERMINATION

I have considered the application and the supporting affidavit.  I have also considered the replying affidavit of Duncan Njogu Kange on behalf of the 2nd Respondent and the grounds of opposition together with the submissions both in support and opposition to the said application.  This Court delivered judgment in respect of this case on 2nd November 2007.  It is trite that once a Court renders itself in a case, it becomes functus officio save only for execution and perfecting the decree therein.  The Black’s Law Dictionary defines functus officio as follows:

“(having performed his or her office)(of an officer or official body)without further authority or legal competence    because the duties and functionsof the original Commission have been fully accomplished”.

In Telkom Kenya Limited Vs John Ochanda (2014) e K.L.R, the Court of Appeal held:

“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a Court that rendered the final decision thereon”.

The Applicant in this application is seeking to inter alia enjoin James Kamau Murango, Apollo Njeru and Peter Murimi Kanjobe as Interested parties and/or defendants.  The Applicant also seeks to have the said Interested parties/defendants cited for contempt of this Court’s orders once they are enjoined as parties to this suit.

It is my view that an application for joinder can only be made before judgment and not after judgment has been entered.   It will not serve any useful purpose to enjoin a party to a suit which has been concluded.  The application by the Plaintiff/Applicant is not only an abuse of the Court process but the same is incompetent and bad in law.  In the upshot, the said application is hereby dismissed with costs to the Respondents.

READ, DELIVERED and SIGNED in open Court at Kerugoya this 28th day of June, 2019.

E.C. CHERONO

ELC JUDGE

28TH JUNE, 2019

In the presence of:

1. Ms Githaiga holding brief for Magee for 11 – 21 Respondents

2. M/S Manegene for 3rd Interested party and holding brief for Muriuki for the 2nd Defendant.