REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO. 15 OF 2021
ABDUL WAHEED SHEIKH AND
ABDUL HAMEED SHEIKH (As Trustees of Sheikh Fazal Ilahi Noordin Charitable Trust) ………………………..........PLAINTIFFS/RESPONDENT
-AND-
COMMISSIONER OF LANDS ………. 1 ST DEFENDANT/RESPONDENT
THE MINISTER OF LANDS
AND HOUSING ..................................... 2 ND DEFENDANT/RESPONDENT
THE MINISTER FOR FINANCE ........ 3 RD DEFENDANT/RESPONDENT
THE REGISTRAR OF TITLES ........... 4 TH DEFENDANT/RESPONDENT
THE ATTORNEY GENERAL .............. 5 TH DEFENDANT/RESPONDENT
ST. BENJAMIN MEMORIAL CLINIC SUPPLIES LIMITED ............................................. PROPOSED 6 TH DEFENDANT/RESPONDENT
-AND-
1. DAVID KAHARA CHEGE (Deceased)
2. RICHARD KAMAU
3. JOSHUA KAHURIA KINGECHE
4. JAMES NGUGI IRWA GATHECA
5. MICHAEL GITHINJI KIMANI
6. ANNE WAIRIMU KAKUI
7. JAMES MWAURA
(Suing on their own behalf and on behalf of the Squatter Community residing on LR No. Formerly 209/193, currently Nairobi Block 37/63, identified with the squatters as Kwa Njoroge Village)
…... INTERESTED PARTIES/ APPLICANTS
RULING
1. This Ruling determines the notice of Motion dated 22 nd January 2026 filed under Certificate of Urgency seeking the following ORDERS:
(1) THAT the Applicants be enjoined in these proceedings as Interested Parties, being long-standing occupants/squatters living on LR No. formerly 209/193, currently Nairobi BLOCK 37/63, identified with the squatters as Kwa Njoroge Village, whose rights and interests will be directly affected by the outcome of the suit.
(2) THAT the Applicants herein are the Plaintiff in ELC 102 of 2008 while the Petitioners are Interested Parties and the Defendants are the same parties in Milimani ELC Case No. 102 of 2007, be recognized as such and included in these proceedings.
(3) THAT the Applicants be granted leave to file pleadings, affidavits and any other documents necessary to protect their interests.
(4) THAT costs of this Application be in the cause.
2. The Application is premised on the grounds on its face and the further averments of the Applicants sworn by Richard Kamau Kahara in his supporting affidavit dated evenly. The proposed Interested Parties through the deponent trace their occupation on the suit property back to the colonial era, asserting that their ancestors were workers for the colonial masters and they originally settled, established homesteads and built a continuous livelihood dependent on farming and grazing.
3. They emphasize that their long-term presence and community structures, ranging from semi-permanent dwellings to historical estate buildings have actively protected the property from being unlawfully grabbed over the decades.
4. The Applicants stress that their active participation in the current proceedings is vital because the core issues are directly tied to an ongoing related case (Milimani ELC Case No. 102 of 2008) involving the same parties and land.
5. It is deposed that excluding them risks contradictory judicial outcomes and threatens to unjustly dispossess the community of its ancestral land, making it fair and equitable for the Court to hear their side of the story.
Responses to the Application
6. In response, the Plaintiff/Respondent filed a Replying Affidavit sworn on 10 th February 2026 by Abdul Waheed Sheikh, the Managing Trustee of the Sheikh Fazal Ilahi Noordin Charitable Trust. The deponent terms the Application as scandalous, abusive of the court process and legally barred by the doctrines of res judicata and functus officio , which strip the court of jurisdiction.
7. It is emphasized that the main suit is long concluded, noting that a definitive judgment was delivered more than thirteen years ago on 18 th May 2012, in favor of the Trust, regarding the property known as L.R. No. 209/193 in Pangani. That judgment and its subsequent decree were fully perfected, culminating in a registered lease and a Certificate of Lease issued to the Trust in late 2023. Consequently, the deponent states that the court cannot reopen the finalized matter for a joinder application over a decade later, as the proper avenue of review was never pursued within the allowable time.
8. The deponent highlights that this is not the Applicants’ first attempt to join the concluded proceedings, noting that a similar Application filed in 2013 under the guise of the Umoja Self Help Group was heard and dismissed with costs on 6 th June 2013. It is deposed that because the court previously ruled that such post-judgment attempts were indolent, time-barred and prejudicial to the Trust, the current effort is barred by res judicata and involves a deliberate suppression of material facts.
9. The deponent also points out that the Applicants instituted their own separate proceedings via Originating Summons in ELC No. 102 of 2008 (consolidated with ELC No. 824 of 2012) claiming adverse possession over the same land, with judgment in that parallel suit scheduled for 26 th February 2026.
10. The deponent asserts that the current Application violates the rule against sub judice and serves as a tactical fishing expedition designed to interfere with the imminent judgment in the Applicants’ own case. He maintains that the Applicants have failed to meet the legal threshold for joinder in a concluded constitutional matter based on legitimate expectation, especially since their underlying claim of adverse possession relies on a wholly distinct cause of action that a constitutional court lacks jurisdiction to try.
11. The deponent characterizes the Application as frivolous, vexatious and hopelessly time-barred, warranting dismissal with punitive costs.
12. The Petitioner also filed Grounds of Opposition dated 10 th February 2026. First, they contend that the Court is functus officio and lacks jurisdiction because it rendered a final judgment and decree over thirteen years ago on 18 th May 2012, through Hon. Justice Lenaola in Misc. Appl. 1531 of 2005 (O.S.), conclusively determining ownership and proprietary rights over Nairobi Block 37/63 (originally L.R. No. 209/193).
13. Further, that this Constitutional Court lacks jurisdiction under Article 162 of the Constitution since the Application concerns land use, occupation and title disputes, which fall under the exclusive jurisdiction of the Environment and Land Court.
14. Additionally, the Petitioners/Respondents state that the Application offends the doctrine of sub judice under Section 6 of the Civil Procedure Act, as the Applicants have already sought similar relief regarding physical occupation of the same property in ELC 102 of 2008 (consolidated with ELC 824 of 2012).
15. They also assert that the Applicants lack locus standi to move a concluded matter to which they were not parties and that the power to add a party post-judgment is inapplicable here because the suit has been fully disposed of, particularly with the National Land Commission having issued a registered lease and Certificate of Lease to the plaintiff in late 2023.
16. Consequently, the Respondents describe the Application as an act of forum shopping, bad faith and an abuse of the court process intended to mislead the court by reintroducing claims already pending before the Environment and Land Court. It is their prayer that it be dismissed with costs.
17. The 1 st and 2 nd Respondents filed a joint response in a Replying Affidavit sworn on 24 th February 2026 by Brian Ikol, Director, Legal Services for the National Land Commission in which he deposes that the proceedings have already been finally determined, with ownership of the suit property, Nairobi Block 37/63 (formerly L.R. No. 209/193) having been confirmed in favour of the Plaintiffs and 1 st Respondents through a final judgment and decree dated 18 th May 2012.
18. Further, it is deposed that a subsequent judgment issued on 28 th February 2017 restrained the 1 st defendant and 2 nd Respondent from issuing or processing allotments that would undermine the 2012 decree. It is deponed that since the 2012 judgment remains un-challenged as no appeal was filed, the court is functus officio , thereby making any attempt to relitigate or reopen the matter impermissible.
19. The deponent notes that the Applicants are seeking joinder based on claims of long occupation and squatter rights over the parcel. However, a strikingly similar Application was previously brought on 9 th November 2012 by the Umoja Self Help Group, which also claimed adverse possession and was supported by an affidavit from David Kahara Chege, who is listed as an Applicant in the current motion despite now being deceased.
20. It is their case that the earlier Application for joinder was formally heard and dismissed by the court in a ruling dated 6 th June 2013. Consequently, the present Application is stated to be barred by res judicata , constitutes an abuse of the court process and attempts to circumvent the law by using different names while asserting identical interests.
21. Additionally, the deponent points out that because David Kahara Chege is deceased and no letters of administration or grants of probate have been presented, any claim on his behalf is legally incompetent.
22. Finally, the deponent challenges the authenticity of the photographs attached to the Application, noting the lack of any certificate of electronic evidence or details regarding when and how they were taken. It is their case that the Application is a time-wasting abuse of the court process meant to undermine a finalized matter.
23. In a rejoinder, the Applicants filed a further Affidavit sworn on 20 th February 2026 sworn by Richard Kamau Kahara on behalf of the Applicants outlining their history of occupation and challenging the legal standing and actions of the Petitioners regarding the suit property. The deponent states that the land was originally held under a colonial lease and after the colonial master vacated, the Applicants and their predecessors remained in open, continuous and uninterrupted possession, establishing their homes and depending on the property for their livelihood.
24. He depones further that the Petitioners and their predecessors have never physically occupied or utilized the land. The deponent further questions the authority and locus standi of Abdul Hameed Sheikh to institute proceedings on behalf of the Trust, noting that the Trust and its representatives previously disposed of their interest in the property to Mohamed Abdulle Ahmed via an indenture dated 20 th November 1998. That following this, the purchaser successfully applied for the reconstruction of a lost or destroyed land register through a gazette notice.
25. It is averred that despite having disposed of their interest and failing to disclose the Applicants’ continuous occupation or the existence of concurrent litigation in ELC Case No. 102 of 2008 , the Petitioners obtained an ex parte judgment on 18 th May 2012. The deponent points out that this judgment concerned L.R. No. 209/193, which had ceased to exist and was converted into Nairobi/Block 37/63 registered in favour of the Permanent Secretary to the Treasury, rendering the judgment incapable of execution.
26. Further deposition is that the Petitioners’ subsequent procurement of a certificate of lease in November 2023 occurred during ongoing litigation and in direct disregard of the Applicants’ rights, violating the doctrine of lis pendens .
27. Asserting that they have a direct, legally protectable interest that will be severely prejudiced without a right to be heard, the Applicants maintain that their joinder is essential for the Court to fully and completely adjudicate all issues surrounding the property.
28. The matter was canvassed by way of oral submissions.Ms Effendy for the Petitioner submitted that judgment was entered in favour of the plaintiff/petitioner and the judgment was perfected culminating into a lease in 2023 and that the only avenue for any aggrieved party is the Court of Appeal. She further submitted that vide ELC 102 of 2008, consolidated with ELC 824 of 2012, Angote J delivered judgment dismissing the suit that sought to address the squatters’ rights
29. Ms Rono holding brief for Mr. Anjichi for the 1 st Respondent on her part submitted that they had filed a preliminary objection on jurisdiction of this Court on account that the application ought to have been filed before the Environment and LAND Court and Ms Effendy concurred.
30. Mr Kerio counsel for the applicants/ proposed interested parties submitted that indeed, the matter was convoluted.
Analysis and Determination
31. From the pleadings and submissions, the only issue for my determination is whether this Court has jurisdiction. To resolve this issue, I will consider whether the court is functus officio and whether the court is seized with the subject matter jurisdiction in light of Articles 165 and 162 of the Constitution .
i. Functus Officio
32. The Respondents argue that the Court is functus officio because it conclusively determined ownership of L.R. No. 209/193 (now Nairobi Block 37/63) in its judgment of 18 th May 2012 which was perfected by issuance of a lease and certificate of lease in 2023. They contend that this Court cannot reopen the matter to entertain a joinder application more than a decade later, as the proper avenue of review was never pursued within time.
33. The Supreme Court in Odinga v Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013 (Consolidated)) [2013] KESC 8 (KLR) (24 October 2013) (Ruling ) extensively analyzed the origins and limits of the functus officio doctrine, anchoring its explanation on recognized comparative jurisprudence and academic commentary. In clarifying the scope of functus officio , it stated: -
“18. We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept:
“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”
19.This principle has been aptly summarized further in Jersey Evening Post Limited v A1 Thani [2002] JLR 542 at 550:
“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available” [emphasis supplied].”
34. Applying the above case to the present application, the facts demonstrate that this Court delivered a judgment on ownership on 18 th May 2012, in the transitional period post 2010 Constitution, which Judgment was fully executed, perfected and remains unchallenged.
35. Further, a Certificate of Lease has been issued and these facts have not been controverted by the Applicants. For those reasons, I have no hesitation in finding that this Court is functus officio regarding substantive ownership of the land. I need not even venture into questions of res judicata raised by the Respondents.
36. Therefore, the Applicants’ attempt to join these proceedings post‑judgment is barred. The Court is functus officio over the core dispute and it cannot reopen the case more than a decade later for a late joinder Application. My finding is that the applicants are wrongfully seeking to re‑litigate substantive property rights already determined.
ii. Subject matter jurisdiction
37. It is trite law that jurisdiction is a constitutional derivative. A court of law derives jurisdiction from the Constitution, statutes or both. The Supreme Court in Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling) held that jurisdiction flows from the Constitution or statute, or both. A court cannot arrogate jurisdiction to itself by judicial craft or innovation. If jurisdiction is not expressly conferred, or where the court is barred expressly form exercising jurisdiction, the court must decline to act. This principle is foundational since without jurisdiction, a court cannot proceed and any orders issued are null. (See Owners of Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1 ).
38. This Court’s jurisdiction under Article 165 of the Constitution is wide and it extends to the authority to determine questions of violation of rights and fundamental freedoms, interpreting the Constitution and supervisory jurisdiction over subordinate courts and tribunals. However, Article 165(5) (b) expressly limits this jurisdiction by excluding matters reserved for specialized courts established under Article 162(2) and of the Supreme Court. The latter Article created the Environment and Land Court (ELC) and the Employment and Labour Relations Court, each with exclusive jurisdiction over their subject matters.
39. Article 162(2)(b) and section 13 the Environment and Land Court Act confer exclusive jurisdiction on the Environment and Land Court to hear disputes relating to land use and occupation, title and tenure; and environmental matters. Thus, where the dispute concerns ownership, occupation, or adverse possession of land as in the present application, the matter falls squarely within the ELC’s jurisdiction, not the High Court.
40. Further, as already found that this Court, differently constituted, already heard and conclusively determined ownership of L.R. No. 209/193 (now Nairobi Block 37/63) in its 2012 judgment; and that the said decree was perfected by issuance of a lease in 2023, it is not only functus officio on ownership questions, but that I also find that the Applicants’ claim is essentially one of adverse possession and occupation, which is a land dispute under Article 162(2) (b) . This Court not only lacks jurisdiction to reopen already determined matters or entertain such claims in a constitutional petition, it is also devoid of subject matter jurisdiction.
41. Following the Supreme Court decision in Macharia vs. KCB (supra), jurisdiction cannot be implied or expanded by equitable considerations. this is in light of the Applicant’s grievance that they stand to lose out on their case not being heard if they’re not enjoined. Since the Constitution and statute allocate land disputes to the ELC, this Court must decline jurisdiction.
42. In the end, I find and hold that the Notice of Motion Applicant dated 22 nd January, 2026 is devoid of merit and this Court’s jurisdiction is ousted. The application is hereby dismissed.
43. I make no orders as to costs.
44. This file is closed.
45. Orders accordingly.
Dated, Signed and Delivered virtually at Nairobi this 18 th Day of September, 2026
R.E. ABURILI
JUDGE
Page 2 of 2
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO. 15 OF 2021
ABDUL WAHEED SHEIKH AND
ABDUL HAMEED SHEIKH (As Trustees of Sheikh Fazal Ilahi Noordin Charitable Trust) ………………………..........PLAINTIFFS/RESPONDENT
-AND-
COMMISSIONER OF LANDS ………. 1 ST DEFENDANT/RESPONDENT
THE MINISTER OF LANDS
AND HOUSING ..................................... 2 ND DEFENDANT/RESPONDENT
THE MINISTER FOR FINANCE ........ 3 RD DEFENDANT/RESPONDENT
THE REGISTRAR OF TITLES ........... 4 TH DEFENDANT/RESPONDENT
THE ATTORNEY GENERAL .............. 5 TH DEFENDANT/RESPONDENT
ST. BENJAMIN MEMORIAL CLINIC SUPPLIES LIMITED ............................................. PROPOSED 6 TH DEFENDANT/RESPONDENT
-AND-
1. DAVID KAHARA CHEGE (Deceased)
2. RICHARD KAMAU
3. JOSHUA KAHURIA KINGECHE
4. JAMES NGUGI IRWA GATHECA
5. MICHAEL GITHINJI KIMANI
6. ANNE WAIRIMU KAKUI
7. JAMES MWAURA
(Suing on their own behalf and on behalf of the Squatter Community residing on LR No. Formerly 209/193, currently Nairobi Block 37/63, identified with the squatters as Kwa Njoroge Village)
…... INTERESTED PARTIES/ APPLICANTS
RULING
1. This Ruling determines the notice of Motion dated 22 nd January 2026 filed under Certificate of Urgency seeking the following ORDERS:
(1) THAT the Applicants be enjoined in these proceedings as Interested Parties, being long-standing occupants/squatters living on LR No. formerly 209/193, currently Nairobi BLOCK 37/63, identified with the squatters as Kwa Njoroge Village, whose rights and interests will be directly affected by the outcome of the suit.
(2) THAT the Applicants herein are the Plaintiff in ELC 102 of 2008 while the Petitioners are Interested Parties and the Defendants are the same parties in Milimani ELC Case No. 102 of 2007, be recognized as such and included in these proceedings.
(3) THAT the Applicants be granted leave to file pleadings, affidavits and any other documents necessary to protect their interests.
(4) THAT costs of this Application be in the cause.
2. The Application is premised on the grounds on its face and the further averments of the Applicants sworn by Richard Kamau Kahara in his supporting affidavit dated evenly. The proposed Interested Parties through the deponent trace their occupation on the suit property back to the colonial era, asserting that their ancestors were workers for the colonial masters and they originally settled, established homesteads and built a continuous livelihood dependent on farming and grazing.
3. They emphasize that their long-term presence and community structures, ranging from semi-permanent dwellings to historical estate buildings have actively protected the property from being unlawfully grabbed over the decades.
4. The Applicants stress that their active participation in the current proceedings is vital because the core issues are directly tied to an ongoing related case (Milimani ELC Case No. 102 of 2008) involving the same parties and land.
5. It is deposed that excluding them risks contradictory judicial outcomes and threatens to unjustly dispossess the community of its ancestral land, making it fair and equitable for the Court to hear their side of the story.
Responses to the Application
6. In response, the Plaintiff/Respondent filed a Replying Affidavit sworn on 10 th February 2026 by Abdul Waheed Sheikh, the Managing Trustee of the Sheikh Fazal Ilahi Noordin Charitable Trust. The deponent terms the Application as scandalous, abusive of the court process and legally barred by the doctrines of res judicata and functus officio , which strip the court of jurisdiction.
7. It is emphasized that the main suit is long concluded, noting that a definitive judgment was delivered more than thirteen years ago on 18 th May 2012, in favor of the Trust, regarding the property known as L.R. No. 209/193 in Pangani. That judgment and its subsequent decree were fully perfected, culminating in a registered lease and a Certificate of Lease issued to the Trust in late 2023. Consequently, the deponent states that the court cannot reopen the finalized matter for a joinder application over a decade later, as the proper avenue of review was never pursued within the allowable time.
8. The deponent highlights that this is not the Applicants’ first attempt to join the concluded proceedings, noting that a similar Application filed in 2013 under the guise of the Umoja Self Help Group was heard and dismissed with costs on 6 th June 2013. It is deposed that because the court previously ruled that such post-judgment attempts were indolent, time-barred and prejudicial to the Trust, the current effort is barred by res judicata and involves a deliberate suppression of material facts.
9. The deponent also points out that the Applicants instituted their own separate proceedings via Originating Summons in ELC No. 102 of 2008 (consolidated with ELC No. 824 of 2012) claiming adverse possession over the same land, with judgment in that parallel suit scheduled for 26 th February 2026.
10. The deponent asserts that the current Application violates the rule against sub judice and serves as a tactical fishing expedition designed to interfere with the imminent judgment in the Applicants’ own case. He maintains that the Applicants have failed to meet the legal threshold for joinder in a concluded constitutional matter based on legitimate expectation, especially since their underlying claim of adverse possession relies on a wholly distinct cause of action that a constitutional court lacks jurisdiction to try.
11. The deponent characterizes the Application as frivolous, vexatious and hopelessly time-barred, warranting dismissal with punitive costs.
12. The Petitioner also filed Grounds of Opposition dated 10 th February 2026. First, they contend that the Court is functus officio and lacks jurisdiction because it rendered a final judgment and decree over thirteen years ago on 18 th May 2012, through Hon. Justice Lenaola in Misc. Appl. 1531 of 2005 (O.S.), conclusively determining ownership and proprietary rights over Nairobi Block 37/63 (originally L.R. No. 209/193).
13. Further, that this Constitutional Court lacks jurisdiction under Article 162 of the Constitution since the Application concerns land use, occupation and title disputes, which fall under the exclusive jurisdiction of the Environment and Land Court.
14. Additionally, the Petitioners/Respondents state that the Application offends the doctrine of sub judice under Section 6 of the Civil Procedure Act, as the Applicants have already sought similar relief regarding physical occupation of the same property in ELC 102 of 2008 (consolidated with ELC 824 of 2012).
15. They also assert that the Applicants lack locus standi to move a concluded matter to which they were not parties and that the power to add a party post-judgment is inapplicable here because the suit has been fully disposed of, particularly with the National Land Commission having issued a registered lease and Certificate of Lease to the plaintiff in late 2023.
16. Consequently, the Respondents describe the Application as an act of forum shopping, bad faith and an abuse of the court process intended to mislead the court by reintroducing claims already pending before the Environment and Land Court. It is their prayer that it be dismissed with costs.
17. The 1 st and 2 nd Respondents filed a joint response in a Replying Affidavit sworn on 24 th February 2026 by Brian Ikol, Director, Legal Services for the National Land Commission in which he deposes that the proceedings have already been finally determined, with ownership of the suit property, Nairobi Block 37/63 (formerly L.R. No. 209/193) having been confirmed in favour of the Plaintiffs and 1 st Respondents through a final judgment and decree dated 18 th May 2012.
18. Further, it is deposed that a subsequent judgment issued on 28 th February 2017 restrained the 1 st defendant and 2 nd Respondent from issuing or processing allotments that would undermine the 2012 decree. It is deponed that since the 2012 judgment remains un-challenged as no appeal was filed, the court is functus officio , thereby making any attempt to relitigate or reopen the matter impermissible.
19. The deponent notes that the Applicants are seeking joinder based on claims of long occupation and squatter rights over the parcel. However, a strikingly similar Application was previously brought on 9 th November 2012 by the Umoja Self Help Group, which also claimed adverse possession and was supported by an affidavit from David Kahara Chege, who is listed as an Applicant in the current motion despite now being deceased.
20. It is their case that the earlier Application for joinder was formally heard and dismissed by the court in a ruling dated 6 th June 2013. Consequently, the present Application is stated to be barred by res judicata , constitutes an abuse of the court process and attempts to circumvent the law by using different names while asserting identical interests.
21. Additionally, the deponent points out that because David Kahara Chege is deceased and no letters of administration or grants of probate have been presented, any claim on his behalf is legally incompetent.
22. Finally, the deponent challenges the authenticity of the photographs attached to the Application, noting the lack of any certificate of electronic evidence or details regarding when and how they were taken. It is their case that the Application is a time-wasting abuse of the court process meant to undermine a finalized matter.
23. In a rejoinder, the Applicants filed a further Affidavit sworn on 20 th February 2026 sworn by Richard Kamau Kahara on behalf of the Applicants outlining their history of occupation and challenging the legal standing and actions of the Petitioners regarding the suit property. The deponent states that the land was originally held under a colonial lease and after the colonial master vacated, the Applicants and their predecessors remained in open, continuous and uninterrupted possession, establishing their homes and depending on the property for their livelihood.
24. He depones further that the Petitioners and their predecessors have never physically occupied or utilized the land. The deponent further questions the authority and locus standi of Abdul Hameed Sheikh to institute proceedings on behalf of the Trust, noting that the Trust and its representatives previously disposed of their interest in the property to Mohamed Abdulle Ahmed via an indenture dated 20 th November 1998. That following this, the purchaser successfully applied for the reconstruction of a lost or destroyed land register through a gazette notice.
25. It is averred that despite having disposed of their interest and failing to disclose the Applicants’ continuous occupation or the existence of concurrent litigation in ELC Case No. 102 of 2008 , the Petitioners obtained an ex parte judgment on 18 th May 2012. The deponent points out that this judgment concerned L.R. No. 209/193, which had ceased to exist and was converted into Nairobi/Block 37/63 registered in favour of the Permanent Secretary to the Treasury, rendering the judgment incapable of execution.
26. Further deposition is that the Petitioners’ subsequent procurement of a certificate of lease in November 2023 occurred during ongoing litigation and in direct disregard of the Applicants’ rights, violating the doctrine of lis pendens .
27. Asserting that they have a direct, legally protectable interest that will be severely prejudiced without a right to be heard, the Applicants maintain that their joinder is essential for the Court to fully and completely adjudicate all issues surrounding the property.
28. The matter was canvassed by way of oral submissions.Ms Effendy for the Petitioner submitted that judgment was entered in favour of the plaintiff/petitioner and the judgment was perfected culminating into a lease in 2023 and that the only avenue for any aggrieved party is the Court of Appeal. She further submitted that vide ELC 102 of 2008, consolidated with ELC 824 of 2012, Angote J delivered judgment dismissing the suit that sought to address the squatters’ rights
29. Ms Rono holding brief for Mr. Anjichi for the 1 st Respondent on her part submitted that they had filed a preliminary objection on jurisdiction of this Court on account that the application ought to have been filed before the Environment and LAND Court and Ms Effendy concurred.
30. Mr Kerio counsel for the applicants/ proposed interested parties submitted that indeed, the matter was convoluted.
Analysis and Determination
31. From the pleadings and submissions, the only issue for my determination is whether this Court has jurisdiction. To resolve this issue, I will consider whether the court is functus officio and whether the court is seized with the subject matter jurisdiction in light of Articles 165 and 162 of the Constitution .
i. Functus Officio
32. The Respondents argue that the Court is functus officio because it conclusively determined ownership of L.R. No. 209/193 (now Nairobi Block 37/63) in its judgment of 18 th May 2012 which was perfected by issuance of a lease and certificate of lease in 2023. They contend that this Court cannot reopen the matter to entertain a joinder application more than a decade later, as the proper avenue of review was never pursued within time.
33. The Supreme Court in Odinga v Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013 (Consolidated)) [2013] KESC 8 (KLR) (24 October 2013) (Ruling ) extensively analyzed the origins and limits of the functus officio doctrine, anchoring its explanation on recognized comparative jurisprudence and academic commentary. In clarifying the scope of functus officio , it stated: -
“18. We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept:
“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”
19.This principle has been aptly summarized further in Jersey Evening Post Limited v A1 Thani [2002] JLR 542 at 550:
“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available” [emphasis supplied].”
34. Applying the above case to the present application, the facts demonstrate that this Court delivered a judgment on ownership on 18 th May 2012, in the transitional period post 2010 Constitution, which Judgment was fully executed, perfected and remains unchallenged.
35. Further, a Certificate of Lease has been issued and these facts have not been controverted by the Applicants. For those reasons, I have no hesitation in finding that this Court is functus officio regarding substantive ownership of the land. I need not even venture into questions of res judicata raised by the Respondents.
36. Therefore, the Applicants’ attempt to join these proceedings post‑judgment is barred. The Court is functus officio over the core dispute and it cannot reopen the case more than a decade later for a late joinder Application. My finding is that the applicants are wrongfully seeking to re‑litigate substantive property rights already determined.
ii. Subject matter jurisdiction
37. It is trite law that jurisdiction is a constitutional derivative. A court of law derives jurisdiction from the Constitution, statutes or both. The Supreme Court in Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling) held that jurisdiction flows from the Constitution or statute, or both. A court cannot arrogate jurisdiction to itself by judicial craft or innovation. If jurisdiction is not expressly conferred, or where the court is barred expressly form exercising jurisdiction, the court must decline to act. This principle is foundational since without jurisdiction, a court cannot proceed and any orders issued are null. (See Owners of Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1 ).
38. This Court’s jurisdiction under Article 165 of the Constitution is wide and it extends to the authority to determine questions of violation of rights and fundamental freedoms, interpreting the Constitution and supervisory jurisdiction over subordinate courts and tribunals. However, Article 165(5) (b) expressly limits this jurisdiction by excluding matters reserved for specialized courts established under Article 162(2) and of the Supreme Court. The latter Article created the Environment and Land Court (ELC) and the Employment and Labour Relations Court, each with exclusive jurisdiction over their subject matters.
39. Article 162(2)(b) and section 13 the Environment and Land Court Act confer exclusive jurisdiction on the Environment and Land Court to hear disputes relating to land use and occupation, title and tenure; and environmental matters. Thus, where the dispute concerns ownership, occupation, or adverse possession of land as in the present application, the matter falls squarely within the ELC’s jurisdiction, not the High Court.
40. Further, as already found that this Court, differently constituted, already heard and conclusively determined ownership of L.R. No. 209/193 (now Nairobi Block 37/63) in its 2012 judgment; and that the said decree was perfected by issuance of a lease in 2023, it is not only functus officio on ownership questions, but that I also find that the Applicants’ claim is essentially one of adverse possession and occupation, which is a land dispute under Article 162(2) (b) . This Court not only lacks jurisdiction to reopen already determined matters or entertain such claims in a constitutional petition, it is also devoid of subject matter jurisdiction.
41. Following the Supreme Court decision in Macharia vs. KCB (supra), jurisdiction cannot be implied or expanded by equitable considerations. this is in light of the Applicant’s grievance that they stand to lose out on their case not being heard if they’re not enjoined. Since the Constitution and statute allocate land disputes to the ELC, this Court must decline jurisdiction.
42. In the end, I find and hold that the Notice of Motion Applicant dated 22 nd January, 2026 is devoid of merit and this Court’s jurisdiction is ousted. The application is hereby dismissed.
43. I make no orders as to costs.
44. This file is closed.
45. Orders accordingly.
Dated, Signed and Delivered virtually at Nairobi this 18 th Day of September, 2026
R.E. ABURILI
JUDGE
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