R U L I N G:
Judgment in this case was delivered on the 16.6.2023. The prayers sought in this Originating Summons filed on 2.10.2019 were for determination of the following issues –
(a) Whether the Applicants have been in continuous and adverse possession of parcel No. Iriaini/Cheche/1617 from well before 11th May, 2000 to date;
(b) Whether the said occupation and utilization of land in (a) was continuous and exclusive and has spanned for over 12 years;
(c) Whether the Applicants have since 2005 and 2006 respectively, been harvesting the tea bushes planted on the said land by themselves and Wachira Kibuchi (deceased), the predecessor in possession to Gladys Wambui whether, without let or hindrance from the Respondent herein;
(d) Whether the Respondent would be entitled, under the law to enforce a Judgment of a Court entered on 11th May, 2000 vide Nairobi High Court Succession Cause No. 62 of 1991 as against the Applicants to defeat the already acquired prescriptive rights in adverse possession;
(e) Whether the Applicants herein have, by virtue of their continuous
occupation and adverse possession over the full extent of land captured in the aforesaid Judgment of the Court; and later vide title number Iriaini/Cheche/1617, acquired prescriptive rights over the said extent of land, entitling them to be declared owners of the said land;
(f) Whether the Land Registrar Nyeri should be ordered to cancel the registration of the Respondent as owner of parcel No. Iriaini/Cheche/1617 and in her place register the Applicants herein as owners of the said parcel; and
(g) Who should pay the costs of these summons?
The court in dismissing the suit made the following determinations –
- The issue raised under Prayers (a) to (f) of the Applicants’ Originating Summons dated 2.10.2019 are answered in the negative with the result that the said Originating Summons is dismissed.
- The Applicants have 30 days from today to clear and remove any structures and/or developments they may have erected on the suit land. In default the Respondent shall be at liberty to remove any such structures and/or developments at the Applicants’ cost; and
- The Applicants shall bear the cost of this suit.
Subsequently, on 15.11.2023 the Bill of Costs was allowed at Kshs.169,823= and thereafter a Decree was drawn and issued on 21.8.2023. then followed a Notice to Show Cause was issued and the same came up in court on 3.4.2024 when the said bill had increased to Kshs.174,323= when the 2nd Applicant herein was said to be in hospital. Both Applicants were given time to settle the Decree though an acceptable proposal on 17.4.2024 the 2 purported to settle the
Decretal amount by paying Kshs.50,000= (initial payment) on 25.4.2024 and thereafter instalments of Kshs.10,000=,
By 29.5.2024 they had already made the down payment of Kshs.50,000= and the balance was now kshs.124,323=. They also increased the monthly instalments to Kshs.15,000= per month with effect form 20.6.2024.
All this time, the parties were silent on the time of vacating the suit premises. No appeal was ever preferred. Then on 3.7.2025 the Respondent filed an Application for the following orders –
- That the Applicants’ structures and/or developments on LR No.IRIAINI/CHEHE/1617 be removed from the said parcel of Land.
- That the Respondents be ordered to bear the costs of the removal of the structures/developments and the cost of this Application.
- That the Officer In-charge of Kiaruhiu Police Station be directed to provide security during the exercise of removal of the Respondents’ properties from L.R. NO. IRIAINI/CHEHE / 1617.
- Any other relief that the Honourable Court may deem fit to grant.
The main Ground upon which this Application and particularly the request for an order of police was that the Applicants have failed to comply with the dictates of the Judgment of the Honourable Olola J. of 16.6.2023 viz to vacate the suit land and remove their developments therein within 30 days and that therefore
the default clause in the Judgment should take effect and the same cannot be done without police supervision.
This is the Application that the Applicants say is res judicata and that this Court is Functus officio to deal with and they made a Preliminary Objection to that effect praying that the same be struck off in the Objection dated 21.7.2025 as follows –
- This Honourable Court is divested of jurisdiction to hear and determine the instant Application as the prayers sought in the Application and the matters in the said Application are res judicata.
- This Honourable Court is Functus officio having delivered its judgment in this matter on 16th June, 2023.
Mr. Barasa argues that this court is now functus officio. He also argued that Prayers Nos. (a) and (b) have already been granted.
To respond to this Ms. Mwai for the Respondent says that she is only seeking police protection and security to carry out the eviction of the Applicants since without the said security it would be an uphill task to demolish the said developments.
Functus officio and Res judicata are related legal doctrines concerning the finality of decisions, but they apply in different contexts. Both deal with finality of a judgment and the prevention of re-litigation. Functus officio, meaning, "having discharged his or her duty," refers to a decision-maker's loss of authority to further act on a specific matter after a final decision has been made. Res judicata, or "a thing decided,"
prevents the re-litigation of a claim or issue that has already been decided by a court. In essence, functus officio ensures that a decision-maker doesn't continue to have authority over a matter, while Res judicata ensures that a decided issue is not re-litigated.
The substantive law on Res Judicata is found in Section 7 of the Civil Procedure Act Cap 21 which provides that:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
Explanation. —(1) The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.
Explanation. —(2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation. —(3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation. —(4) Any matter which might and ought to have been made ground of Defence or attack in such former suit shall be
deemed to have been a matter directly and substantially in issue in such suit.
Explanation. —(5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation. —(6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”
The Black’s law Dictionary 10th Edition defines “res judicata” as
“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”
A person may not commence more than one action in respect of the same or a substantially similar cause of action and the Court must attempt to resolve multiple actions involving a party and determine all matters in dispute in an action so as to avoid multiplicity of actions.
In order therefore to decide as to whether an issue in a subsequent Suit is res judicata, a court of law should always look at the Decision claimed to have settled the issues in question and the entire Suit and the instant Suit to ascertain;
- what issues were really determined in the previous Suit;
ii. whether they are the same in the subsequent Suit and were covered by the Decision.
iii. whether the parties are the same or are litigating under the same Title and that the previous Suit was determined by a court of competent jurisdiction.
In the case of Christopher Kenyariri vs Salama Beach (2017) eKLR, the court clearly stated the ingredients to be satisfied when determining res judicata thus;
“...the following elements must be satisfied...in conjunctive terms;
a) The suit or issue was directly and substantially in issue in the former suit
b) Former suit between same parties or parties under whom they or any of them claim
c) Those parties are litigating under the same title
d) The issue was heard and finally determined.
e) The court was competent to try the subsequent suit in which the suit is raised.”
In E.T vs Attorney General & Another (2012) eKLR where it was held that:
“The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi Vs
National Bank of Kenya Limited and Others (2001) EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J., in the case of Njangu vs Wambugu and another Nairobi HCCC No.2340 of 1991 (unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic fact lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…..”
What is before the Court is execution proceedings and not another or subsequent Suit. Accordingly, there is nothing to compare the current suit with in order to pronounce it Res Judicata. On this, the Preliminary Objection is unsuccessful.
The other crucial question in this matter is the functus officio concept. Has this Court’s role become wholly redundant, and it may no longer entertain the relevant question before it?
This court determined this matter with finality through its Judgment delivered on 16/6/2023 and it is thus restrained by the doctrine of functus officio from re-opening and re-hearing the same.
The concept of functus officio has its roots in English law and has evolved through centuries. The doctrine was firmly established by the Judicature Act of 1873, which fused common law and equity jurisdictions in England. The Acts promoted the idea of finality in judicial Decisions, prohibiting courts from revisiting Decisions unless under exceptional circumstances.
The fundamental reason behind the principle of functus officio is to ensure finality in legal decisions. If courts or tribunals were permitted to revisit their decisions at any time, it would lead to prolonged litigation, erode trust in the judicial process, and prevent closure for the parties involved.
Some of the key purposes and advantages of the doctrine are as follows:
- Promoting Legal Certainty: Litigants, after a decision is rendered, can
move forward with confidence, knowing that their matter has been conclusively settled.
- Judicial Efficiency: This doctrine prevents courts from being bogged down by repeated hearings of the same matter, allowing them to focus on new and ongoing cases.
- Fairness: Once a decision is rendered, the parties involved are entitled to appeal to a higher forum rather than continually reopening the case. This ensures procedural fairness and prevents abuse of the legal system.
The principle of functus officio was aptly reiterated by the Court of Appeal in the case of Telkom Kenya Limited vs John Ochanda (Suing on His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR that:
“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. It is a doctrine that has been recognized in the common law tradition from as long ago as the latter part of the 19th Century. In the Canadian case of Chandler vs Alberta Association of Architects [1989] 2 S.C.R. 848, Sopinka J. traced the origins of the doctrines as follows (at p. 860);
“The general rule that a final decision of a court cannot be re-opened derives from the Decision of the English Court of Appeal in re St. Nazaire Co., (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division.”
Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 in which the learned author stated;
“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 superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”
This principle has been aptly summarized further in Jersey Evening Post Ltd vs. Ai 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. (Emphasis mine). 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 or adjudication must be taken to a higher court if that right is available.”
The Applicants are seeking to enforce the Judgment of this court delivered on 16/6/ 2023. It is thus clear that they are not seeking a re-engagement of the Court with its earlier Decision. A court does not become functus officio merely because it has delivered a final decision in civil proceedings. The court retains its power to undertake several actions including but not limited to stay, review, execution proceedings and such other acts and steps towards the closure of the file. In Leisure Lodge Ltd vs Japhet Asige and another (2018) EKLR the court said and held:
“On the question that this court is functus officio, I do find that a trial court retains the duty and jurisdiction to undertake and handle all incidental proceedings even after a final judgment is delivered provided such proceedings do not amount to re-trying the cause but geared towards bringing the litigation to an end. That is the reason, the court must undertake settlement of a Decree, if parties cannot agree, handle applications for stay, review, setting aside and even execution proceedings including Applications under Section 94 of the Act.
In the Supreme Court of Kenya, Petition No. 7 Of 2019 ─Between─ 1. Geoffrey M. Asanyo Lenaola, SCJJ) held that:
“The Origins of the Functus officio Doctrine, with Special Reference to its Application in Administrative Law”, in South African Law Journal, Vol. 122 (2005), at p. 832, in the following terms:
“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 taken, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision-maker.” In determining whether the Appellate Court was functus officio, we need to ask ourselves whether that Court resolved the matter before it with finality……………………………………………..”
Execution is provided for under Order 22 of the Civil Procedure Rules. It is part of the court process to ensure that the Decree Holder enjoys the fruits of his otherwise successful Judgment without which the whole litigation process would be an academic exercise. It would not be worth the time and the cost. The Applicants are therefore wrong on this. It cannot make the court functus officio.
For the Court to consider the Application dated 3/7/2025 and facilitate the execution of its own Decree is still within its powers and mandate. The same echoes the Judgment of the Court and asks the court to facilitate the execution of the Decree issued on 21/8/2023. If execution process would make a court functus officio then it would be so difficult in most cases such as this one to
effect execution.
The Preliminary Objection dated 21/7/2025 therefore lacks merit, is a waste of time and I agree with the Respondent’s Counsel that the same is calculated to delay and/or defeat the execution of the Decree herein and accordingly the Objection is hereby dismissed with costs to the Respondent.
RULING READ AND DELIVERED IN NYERI THIS 25TH JULY 2025.
MUGO KAMAU
JUDGE