[2014] KEHC 1153 (KLR)
The court held that once judgment was delivered and a notice of appeal was filed, it became functus officio and could not entertain further applications relating to the merits or execution of the judgment. The execution process was found to be in compliance with the judgment, and any grievances regarding execution...
Source-derived case information.
- Citation
- [2014] KEHC 1153 (KLR)
- Parties
- Plaintiff: The Board of Trustees National Social Security Fund; Defendant: Seborga Leisure Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 29 of 2013
- Procedural Posture
- Notice of Motion / Ruling on Post Judgment Application
- Outcome
- application dismissed with costs
- Judges
- SN Mukunya
- Legal Topics
- Execution of Judgment, Functus Officio, Status Quo Orders, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Board of Trustees National Social Security Fund
Plaintiff
Seborga Leisure Limited
Defendant
Procedural Posture
Notice of Motion / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the execution process undertaken by the plaintiff was unprocedural, premature, or an abuse of court process.
- 2 Whether the court is functus officio after delivery of judgment and filing of notice of appeal.
- 3 Whether the applicant is entitled to remedial orders to restore status quo.
Ratio Decidendi
The court held that once judgment was delivered and a notice of appeal was filed, it became functus officio and could not entertain further applications relating to the merits or execution of the judgment. The execution process was found to be in compliance with the judgment, and any grievances regarding execution should be pursued through the appellate process. The application was therefore dismissed as lacking merit, with the applicant's recourse lying solely in the appeal already filed.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
COPY
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 29 OF 2013
THE BOARD OF TRUSTEES
NATIONAL SOCIAL SECURITY FUND .......... PLAINTIFF/APPLICANT
- VERSUS -
SEBORGA LEISURE LIMITED..................... DEFENDANT/RESPONDENT
RULING
[1] The applicant filed his notice of motion on 3rd April 2014 praying for orders that the execution process undertaken by the plaintiff was unprocedural and/or premature and an abuse of the process of the court. That it was illegal and/or a nullity in that the said part of the premises was never subject of the court precess. That the court be pleased to order such remedial measures as would in the circumstances restore status quo and to safeguard the due process and rehabilitate the rule of law.
[2] The respondents filed grounds of opposition. They argued that the application has been overtaken by events in seeking to act in vain. That the application lacks any basis since the Deputy Registrar acted in compliance with the judgment on record. They argued that the application filed a notice to the Court of Appeal and that this court is "functus officio" and that finally the subject matter was not tenancy but safety of the public and the execution for the order herein realized and gave effect to the court order.
[3] Judgment was delivered on 22nd February 2014. The respondents filed a notice of appeal on 12th March, 2014. A notice of appeal once filed is deemed as an appeal. This court became functus officio once it handed down the judgment. The execution of the decree has been done. The applicants recourse is now only to pursue the appeal it has filed. The application filed herein is clearly without any merit and is dismissed with costs.
Dated and delivered in open court at Mombasa this 14th day of November 2014.
S. MUKUNYA
JUDGE
14. 11. 2014
In the presence of:
Mr. Fwaya advocate for Mr. Wafula advocate.
Mr. Thiaka advocate holding brief for Mr. Mwakisha advocate for applicant.