https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9738

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA MACHAKOS** **HCCA E303 OF 2024** **COSMOS NGULA MASESI…………………….….……..APPELLANT** **VERSUS** **ALBERT KIIO NDETI……………...………………..…..RESPONDENT** *(Being an appeal from the Ruling of HON.S.A. OPANDE (P.M) in Kangundo CMCC NO. E097 of 2021 delivered on 07/11/2024)* **JUDGMENT** 1. The trial court was tasked with determining a Notice of Motion Application dated 10th September 2024, brought by the Appellant, who sought to set aside the proceedings of 5th June 2024, vacate the court's directions, and reinstate the Respondent's suit to allow the Respondent to call witnesses and produce evidence. 2. The application was supported by an affidavit from the Appellant's advocate, who explained that when the suit came up for hearing on 5th June 2024, the Respondent's counsel informed the court that the Appellant had not complied with the terms of paying throw-away costs as per a prior consent order 3. . This caught the Appellant's counsel by surprise, and the court subsequently directed that the judgment delivered on 4th April 2023 be reinstated due to non-compliance. 4. However, the Appellant now contended that he had indeed complied with the payment of throw-away costs, and the same had been paid to Ms. Mutua, who was then appearing for the Respondent. 5. The Appellant further argued that Ms. Mutua had admitted receiving the payment but failed to update the court file, and that the administrative lapse lay within the Respondent's counsel's office, not with the Appellant or his advocate. 6. The trial court, however, observed that once it had ordered the reinstatement of the judgment delivered on 4th April 2023, and evidence later emerged that the Appellant had complied, the proper course of action would have been for the Appellant to apply for a review of those orders. 7. Instead, the Appellant's approach of seeking to set aside the proceedings was found to violate the principle of functus officio, which bars a merit-based re-engagement with an issue after a decision on the merits has been made, save for exceptions such as review applications. 8. Consequently, the trial court found it moot to examine the prayer to set aside and dismissed the Notice of Motion Application dated 10th September 2024, with costs awarded to the Respondent. 9. The Appellant appealed against the said Ruling on the following grounds; 10. ***THAT the learned magistrate erred in law and fact by failing to take into consideration the entire case of the Appellant.*** 11. ***THAT the learned magistrate erred in law and fact by holding that the court was functus officio in hearing and determining the Application dated 10th September 2024.*** 12. ***THAT the learned magistrate erred in law and fact by ignoring the entire evidence of the Appellant in the circumstance.*** 13. ***THAT the learned magistrate erred in law and fact by failing to take into consideration the fact that the Appellant had paid the throw away cost.*** 14. ***THAT the learned magistrate erred in law and fact by condemning the Appellant for the mistake of the advocate for the Respondent.*** 15. ***THAT the learned magistrate erred in law and fact by entirely depending on the Respondent's pleadings and submissions and ignoring the Appellant's case on record.*** 16. ***THAT the learned magistrate erred in law and fact by denying the Appellant an opportunity for fair hearing in the circumstance.*** 17. ***THAT the learned magistrate erred in law and fact by sacrificing justice on grounds of procedural technicality.*** 18. ***THAT the learned magistrate erred in law and fact by holding that the Appellant approached the court in an unwarranted manner.*** 19. The parties filed written submissions as follows; The appellant, Cosmas Ngula Masesi, submitted that he appeals against the ruling of the trial court delivered on 7th November 2024, which dismissed his application dated 10th September 2024, arising from a suit over a road traffic accident in which interlocutory judgment was entered against him on 12th October 2021. 20. That interlocutory judgment was set aside by consent on 28th October 2021, on condition that the appellant pay throw-away costs of Kshs. 5,000 and file his defence, which he did, but when the matter came up for hearing, his advocate was denied audience for non-payment of those costs, and the respondent proceeded to obtain judgment. 21. The trial court later set aside those proceedings and issued fresh summons, which were never served on the appellant, yet the matter proceeded for formal proof and judgment was entered against the appellant for Kshs. 12,000,644 on 5th April 2023. 22. The appellant filed an application to set aside that judgment, which was allowed on 27th October 2023, subject to payment of throw-away costs of Kshs. 20,000 and filing a defence within seven days, and on 15th November 2023, the respondent’s counsel, Ms. Mutua, confirmed in court that the costs had been paid. 23. However, on 5th June 2024, counsel for the respondent, Mr. Mulyungi, alleged that the defence had been filed out of time and the throw-away costs had not been paid, and the court directed the appellant to bring evidence to the contrary, which he did through his application dated 10th September 2024, attaching a bank statement and WhatsApp correspondence confirming receipt of the funds by Ms. Mutua. 24. The trial court dismissed that application, and the appellant contends that it erred by disregarding the evidence of payment and relying on a misrepresentation by the respondent’s advocate, thereby unjustly enriching the respondent’s counsel and violating the appellant’s constitutional rights under Articles 47, 48, and 50(1) of the Constitution, since he had fully complied with the payment order and the problem was the respondent’s firm’s failure to update its internal records. 25. The appellant further argues that the trial court misapplied the doctrine of functus officio, elevating procedural technicalities over substantive justice contrary to Article 159(2)(d) of the Constitution, and cites the case of **Telkom Kenya Ltd v John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd) [2014] eKLR** for the proposition that the functus officio principle is not absolute and does not prevent a court from correcting errors or addressing issues necessary to give effect to its decision. 26. He also relies on **Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd [2014] eKLR,** where the Court of Appeal emphasized that courts must balance finality with fairness and that functus officio should not bar a court from addressing genuine errors that may lead to injustice, and on **Martha Wangari Karua v Independent Electoral and Boundaries Commission & Others, Nyeri Civil Appeal No. 1 of 2017,** for the principle that courts must uphold a party’s right to a fair hearing and avoid reliance on technical doctrines that deny substantive justice. 27. The appellant further cites **Bank of Africa Kenya Ltd v Put Sarajevo General Engineering Co Ltd & 2 Others [2018] eKLR** for the proposition that procedural doctrines like functus officio must not be applied to defeat justice, especially where compliance with an order is in question, and **Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR**, for the principle that courts should not penalize a litigant for errors attributable to counsel, as any misstep here arose from the respondent’s advocates’ internal mismanagement, not from the appellant. 28. The appellant contends that the dismissal has occasioned grave prejudice by sustaining a colossal judgment sum of Kshs. 12,000,644 without his defence being tested on its merits, thereby denying him a fair hearing, and he therefore prays that the appeal be allowed, the trial court’s ruling set aside, and the matter be remitted for a hearing de novo so that both parties may be heard on the merits and substantive justice be served. 29. This is the respondent's submission in a first appeal arising from the ruling of the trial court in Kangundo PMCC No. E097 of 2021, where the appellant, Mr. Cosmas Ngula Masesi, challenges the decision delivered on 7th November 2024. 30. The respondent begins by outlining the duty of the High Court as the first appellate court, citing the case of **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR**, which requires the court to reevaluate, reassess, and reanalyze the extracts on record to determine whether the conclusions reached by the learned judge should stand. 31. The factual background reveals that the respondent filed suit seeking damages under the Fatal Accidents Act and Law Reform Act following a road traffic accident that occurred on 19th November 2020. 32. Interlocutory judgment was entered in default of appearance on 12th October 2021, but this was conditionally set aside by consent on 28th October 2021, with terms requiring the defendant to file defence within 14 days and pay thrown away costs of Kshs. 5,000. 33. The matter was subsequently mentioned on 7th December 2021, where the defence counsel sought extension to pay costs, and the court ordered payment within seven days. 34. Due to non-compliance with these orders, counsel was denied audience on 31st May 2022, and the matter proceeded exparte, though the trial court later referred it to the Chief Magistrate for directions as the submitted sum exceeded its jurisdiction. 35. On 4th August 2022, the court set aside the entire proceedings for lack of jurisdiction and ordered summons to be reserved upon the 1st defendant only, with judgment in default entered on 26th September 2022 and the suit proceeding exparte on 2nd March 2023, culminating in judgment on 5th April 2023. 36. Following this judgment, the 2nd defendant/appellant filed a notice of motion dated 12th July 2023, which was compromised by consent on 27th October 2023, allowing the application subject to thrown away costs of Kshs. 20,000 to be paid within 30 days and granting the defendant leave to file defence within seven days. 37. The respondent emphasizes that the defence was filed on 14th February 2024, over three months after the deadline and without leave of court, and the thrown away costs were not paid within the stipulated timeframe. 38. When the parties appeared on 5th June 2024, the plaintiffs raised non-compliance with the court orders, and the defendant, having failed to produce evidence of payment and failing to address the issue of the defence being filed out of time, the judgment reverted and the file was closed. 39. The appellant subsequently filed an application dated 10th September 2024 without seeking clear orders, still insisting on payment of the thrown away costs without addressing the invalidity of the defence. 40. The respondent relies on the persuasive authority of **Radha Motors Ltd & another v Mutyota (Civil Appeal E012 of 2020) [2022] KEHC 15127 (KLR) (1 November 2022**) (Ruling) by Justice George Dulu, which held that where a consent order has clear terms on timeframes and consequences of default, and a party does not abide by those terms, the only avenue open is to seek leave of court for extension of time or to agree to vary the terms, and failure to do so renders the appeal invalid. 41. The respondent further argues that failure to comply with clear court orders undermines the authority and dignity of the court, citing the Supreme Court **in Republic v Mohamed & Another (Petition 39 of 2018) [2019] KESC 48 (KLR) (15 March 2019) (**Judgment) with dissent by M.K. Ibrahim & S.C. Wanjala, SCJJ, which emphasized that it is essential for the maintenance of the rule of law that the authority and dignity of courts are upheld, and courts will not condone deliberate disobedience of orders. 42. The respondent quotes the principle from **Hadkinson v Hadkinson [1952] 2 All E.R. 567** that every person against whom an order is made by a court of competent jurisdiction has an unqualified obligation to obey it unless and until discharged, even if they believe it to be irregular or void. 43. The respondent references the Court of Appeal in **A.B. & Another v R.B, Civil Application No. 4 of 2016 [2016] eKLR,** which cited with approval the South African case **of Burchell v Burchell, Case No. 364 of 2005,** holding that compliance with court orders is fundamental to a society based on the rule of law. 44. The respondent further relies on the Court of Appeal in **Tana Teachers' Cooperative & Another v Andriano Muchiri [2018] eKLR,** which stated that a party cannot egregiously fail to comply with court directions claiming they were salutary and without sanctions, as that amounts to gross abuse of court process and there must be an end to litigation. 45. Additionally, the respondent cites **Nicholas Kiptoo Arap Korir Salat** on stating documents filed without leave, where Hon. Dr. Iur Fred Nyagaka E.L. Judge held that a document filed without leave of court or outside the prescribed period is a nullity and should be expunged from the record. 46. The respondent submits that the trial court did not err in law or fact and properly dismissed the application dated 10th September 2024, as the appellant failed to comply with both the payment of thrown away costs and the filing of defence within the prescribed time, and the issues raised were functus officio following the proceedings on 5th June 2024. 47. The respondent notes that the appellant does not deny the specific timelines given by the court and has dedicated submissions only to payment of costs without explaining the delay in filing the defence, and cannot raise new issues at this appellate stage. 48. The respondent refutes the appellant's allegation that the respondent's advocate unjustly enriched himself, stating that the appellant only produced private communication with Ms. Sophia Mutua Advocate and failed to provide an affidavit confirming that the funds were transmitted to the respondent's office, as detailed in the trial court submissions at paragraphs 21-23 (pages 30-31 of the Record of Appeal). 49. The respondent concludes that the defence on record is invalid and was filed out of time without leave, which the appellant has never sought to validate, and since the trial court pronounced itself on 5th June 2024 and ordered the suit closed with the judgment reverting, the appellant could only move the court by way of review or appeal, not by raising the same issues in a fresh application. 50. The respondent urges the court to uphold the trial court's ruling and dismiss the appeal with costs. 51. The issues for determination in this appeal are as follows; 52. ***Whether the learned trial magistrate erred in law and fact by finding that the court was functus officio,*** 53. ***Whether the trial court failed to consider the compelling evidence of compliance with the conditional orders regarding the payment of throw-away costs, and*** 54. ***Whether the dismissal of the application on procedural grounds violated the Appellant’s constitutional right to a fair hearing.*** 55. In resolving these issues, it is clear that the learned trial magistrate erred by taking an overly restrictive and technical approach to the doctrine of functus officio. 56. As established 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 Ltd) (supra)**, the principle of functus officio is not an absolute bar and must not be applied mechanically to shut the doors of justice where a clear mistake, misapprehension of facts, or material error has occurred. 57. The Appellant placed cogent evidence before the trial court, including bank statements and communications, proving that the throw-away costs of Kshs. 20,000 had indeed been paid to Ms. Mutua, who was counsel on record for the Respondent at the material time. 58. By failing to evaluate this evidence and blindly relying on the Respondent's subsequent oral misrepresentation that the order had been violated, the trial court allowed an internal administrative failure within the Respondent’s advocate's firm to penalize the Appellant. 59. The Court of Appeal in **Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (supra),** clarified that the mistakes or internal mismanagement of counsel should not be visited upon a litigant who has otherwise acted in good faith and complied with the substance of court directives. 60. Furthermore, the trial court’s decision to lock out the Appellant and sustain a colossal judgment sum of Kshs. 12,000,644 without a trial on the merits constitutes a severe miscarriage of justice. 61. This mechanical application of procedural technicalities directly offends Article 159(2)(d) of the Constitution of Kenya, 2010, which mandates that substantive justice must be administered without undue regard to procedural technicalities, as well as Articles 47 and 50(1) which guarantee the right to a fair hearing. 62. In **Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd (supra),** the Court of Appeal emphasized that courts possess an inherent power to correct injustices and balance finality with fairness, ensuring that procedural doctrines do not become instruments of oppression. 63. While the Respondent raises concerns regarding the late filing of the defence, the overarching objective of the court must be to give the parties a day in court so that a multi-million shilling claim arising from a road traffic accident can be tested on its merits. 64. Consequently, the trial court's ruling cannot stand. The appeal is hereby allowed, the ruling and order of the trial court delivered on 7th November 2024 are set aside. 65. The Notice of Motion dated 10th September 2024 is granted, and the matter is remitted to the trial court for a hearing de novo on the merits, with costs of this appeal awarded to the Appellant. 66. Orders to issue accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE 2026** **ASENATH ONGERI** **JUDGE** **In the presence of** No appearance for the Appellant Miss Omari holding brief for Mr Muriungi for the Respondent Chrispin - Court Assistant