Asitiba & another v City County of Nairobi [2022] KEHC 363 (KLR)

Asitiba & another v City County of Nairobi (Civil Case 1115 of 2003) [2022] KEHC 363 (KLR) (Civ) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 363 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 1115 of 2003

JK Sergon, J

May 6, 2022

Between

Patrick Atenya Asitiba

1st Decree holder

Phanice Ondeche Asitiba

2nd Decree holder

and

City County of Nairobi

Debtor

Ruling

1. This ruling is premised on the Notice of Motion brought by the 1st and 2nd decree holders/applicants dated 3rd November, 2021 and supported by the grounds established on its face and the facts stated in the affidavit of advocate Wangira Okoba. The following are the orders being sought therein:i.Spent.ii.Spent.iii.That upon hearing and determination of the application, this Honourable Court be pleased to review/vary its judgment of 19th October, 2017 which is hereby amended to the effect that the decretal sum shall earn interest of 12% p.a. from the date of judgment until payment in full.iv.That the costs of the application be awarded to the plaintiffs/decree holders.

2. The Motion is opposed by way of the replying affidavit sworn by W.S. Ogolla on 7th March, 2022 on behalf of the judgment debtor/respondent and the notice of preliminary objection of like date, putting forward the following grounds:a.The application as filed offends the provisions of Order 45, Rule 1(1)(b).b.This Honourable Court lacks jurisdiction as it has become functus officio.c.The application offends the settled doctrine espoused in John Kiragu Kimani v Rural Electrification Authority (2020) eKLR thus;“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 judgement or order has been perfected. The purpose of the doctrine is to provide finality. Once the proceedings are finally concluded the Court cannot review or alter its decisions; any challenge to its ruling on adjudication must be taken to a higher Court if that right is available.”

3. When the parties attended court on 9th March, 2022 it was agreed that the instant Motion and the preliminary objection would be canvassed together.

4. In that respect, this court directed the parties to put in written submissions thereon. This court notes that at the time of writing this ruling, only the submissions by the respondent had been made available for consideration.

5. I have considered the grounds presented on the face of the Motion as well as the affidavit in support thereof. I have likewise considered the replying affidavit and preliminary objection. Furthermore, I have taken into consideration the submissions on record and the authorities cited in support thereof.

6. A brief background of the matter is that the applicants lodged the present suit in their capacity as the legal representatives of the estate of Asitiba Atenya Ayau (“the deceased”) against the respondent by way of the plaint dated 31st October, 2003 and sought for various reliefs including a declaration that the sale by auction of the property known as L.R. No. 12062/316 (V-7053) (“the suit property”) by the respondent through its agents was unlawful; and a prayer for restitution of the suit property or the value thereof; and general damages for lost rent on the suit property from September, 1993 until the date of judgment, plus costs of the suit and interest thereon at court rates.

7. The suit, which was defended by the respondent, proceeded for hearing before the court.

8. Upon close of submissions, this court delivered judgment on 19th October, 2017 in favor of the applicants and against the respondent, by granting the declaratory order and awarding them the sum of Kshs.12,000,000/= being the estimated value of the suit property, plus costs of the suit.

9. Returning to the instant Motion, before I consider its merits, I will address the preliminary objection which is essentially challenging the jurisdiction of this court under the principle of functus officio.

10. The respondent is of the view that upon its compliance with the terms of the aforementioned judgment delivered by this court, the court became functus officio and cannot therefore make any further orders in respect to the said judgment.

11. In addition to the holding arrived at in the case of John Kiragu Kimani v Rural Electrification Authority(2020) eKLR cited in the preliminary objection, I also considered the case of John Gilbert Ouma v Kenya Ferry Services Limited [2021] eKLR in which the court held that:“The doctrine of functus officio was considered by the Court of Appeal in Telkom Kenya limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) [2014] eKLR, where the court held 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.”Section 99 of the Civil Procedure Act provides exceptions to the doctrine of functus officio in the following terms-“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”

12. Upon my study of the record, it is apparent that the instant Motion concerns itself with the subject of interest at the point of judgment.

13. Upon my further study of the record, I note that in delivering judgment, this court did not award any interest on the decretal sum of Kshs.12,000,000/=.

14. Going by the record, it is not in dispute that the aforementioned decretal sum has since been settled by the respondent.

15. In view of the foregoing circumstances, I am convinced that this court would be rendered functus officio to consider the issue of interest at this point in time and cannot therefore make any further orders in that respect. In my view, the instant Motion has also been overtaken by events.

16. Concerning the separate ground raised in the preliminary objection to the effect that the Motion offends the provisions of Order 45, Rule 1(1) (b) of the Civil Procedure Rules, I am of the view that this ground does not adhere to the tenets of preliminary objections since it would require a delving into the facts and law, as opposed to being based on a pure point of law where the facts remain undisputed.

17. In view of the foregoing circumstances, the preliminary objection partially succeeds on the basis that this court is functus officio. Consequently, the Notice of Motion dated 3rd November, 2021 is hereby dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6th DAY OF MAY, 2022. J. K. SERGONJUDGEIn the presence of:...................for the 1st and 2nd Decree Holders/Applicants...................for the Judgment Debtor/Respondent