[2022] KEHC 9955 (KLR)

G4S Kenya Limited v Belle Africa Tours and Travel Ltd (Civil Appeal E070 of 2020) [2022] KEHC 9955 (KLR) (Commercial and Tax) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9955 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Appeal E070 of 2020

WA Okwany, J

July 14, 2022

Between

G4S Kenya Limited

Appellant

and

Belle Africa Tours and Travel Ltd

Respondent

Judgment

Background 1. The appellant herein was the defendant before the Lower Court where plaintiff/respondent sued it for breach of contract. The Lower Court entered judgment against the defendant for a sum of Kshs 1,500,000/= together with costs.

2. The plaintiff thereafter filed an application dated 3rd August 2020 seeking to lift the corporate veil so as hold the defendant’s directors liable for disobeying court orders. The defendant however raised a preliminary objection, to the application, on the jurisdiction of the court to entertain the application on the grounds that the court was functus officio.

3. In a ruling delivered 6th November 2020, the court allowed the plaintiffs application thereby precipitating the instant appeal.

The appeal 4. This appeal arises from the ruling of Hon. G. A. Mmasi (SPM) delivered on 6th November 2020. Aggrieved by the said ruling, the appellant lodged the dated 23rd November 2020. The grounds of appeal are as follows:-Grounds1. The learned magistrate erred in law and fact in dismissing the appellant's preliminary objection dated 2nd September, 2020. 2.The learned magistrate erred in law in adjudicating on a matter where she did not have jurisdiction to do so. The trial court delivered a final judgment on 2nd March, 2020 and determined the dispute between the parties with finality. The lower court was therefore functus officio.3. Without prejudice to the foregoing:-a)The learned magistrate erred in law and in fact in delivering a ruling with respect to the respondent's application dated 3rd August, 2020 having not heard parties' arguments on the same.b)The learned magistrate erred in law in law in holding that that the respondent's application dated 3rd August, 2020 was an execution application made pursuant to section to 34 of the Civil Procedure Act and Order 22 Rule 35 of the Civil Procedure Rules, 2010c)The learned magistrate erred in law and in fact in finding that the appellant had moved it physical location twice since 2019 and changed its postal address to frustrate the respondent.d)The learned magistrate erred in law holding that the respondent had satisfied the conditions set in law to permit the appellant's corporate veil to be lifted.e)The learned magistrate erred in law and in fact in finding that the appellant's directors were in contempt of the trial court's orders.4)The learned magistrate in erred law and in fact in failing to take into account material facts set out by the appellant and consequently arrived at the wrong decision.

5. The appeal was canvassed by written submissions which the parties’ respective advocates highlighted on 22nd March 2022. The main issue for determination is whether the subordinate court was functus officio at the time it delivered the impugned ruling dated 6th November 2020.

6. The appellant argued that the trial court erred in failing to address the preliminary objection challenging its jurisdiction to entertain the matter as it was functus officio. The appellant submitted that that it had complied with the judgement in full and that the alleged additional sum of Kshs 12,679,920 did not form part of the award. The appellant maintained that the court became functus officio upon delivering its judgment on 2nd March 2020.

7. In a rejoinder, the respondent submitted that the appellant disobeyed the court’s orders when it did not pay the invoiced amount of Kshs 12,679,920. The conceded that the appellant had only settled the general damages awarded by the trial court.

8. The Black`s Law Dictionary 8th Edition defines the term functus officio as –“having performed his or her office”) (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”

9. In Raila Odinga & 2 others vs Independent Electoral & Boundaries Commission & 3 others (2013) eKLR the Supreme Court held that:-“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 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.”

10. The above decision is clear that the doctrine of functus officio bars the court from revising matters once a final judgement has been delivered. The exceptions to the doctrine can be found in Section 99 of the Civil Procedure Act which provides that:-“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.”

11. In the present case, the trial court stated as follows in its ruling dated 6th November 2020: -“so that while this court while taking cognizance of the legal principle where of a court being functus officio as the defendant’s position herein, that position extinguishes by the salient provisions highlighted above to which this court finds the plaintiff’s present application squarely falling under. For this reason, the objection to this court’s jurisdiction is dismissed, this court is not reopening but rather making a determination on an issue arising between the parties on consonance with the law”

12. In the application that gave rise to the impugned ruling, the plaintiff sought orders to lift the defendant’s corporate veil and for Notice to Show Cause against the directors directly for alleged disobedience of the court orders dated 20th September 2017. The said orders were to the effect that the temporary injunction would remain in force until the suit was heard and determined.

13. As I have already noted in this judgment, the Lower Court rendered its final judgment in the matter on 2nd March 2020. The contempt of court proceedings were instituted by the plaintiff five (5) months after the judgment, through the application dated 3rd August 2020. I note that the sum of Kshs. 12,679,920 that was the basis of the contempt of court proceedings did not form part of the plaintiff’s claim before the Lower Court and was not awarded in the judgment. The contempt application was in respect to appellant’s alleged failure to pay the invoiced amount for the use of the plaintiff’s vehicles.

14. My finding is that the Lower Court was functus officio at the time the contempt application was filed before it having already rendered a judgment which the appellant had complied with. The judgment in question did not contain an order for the payment of Kshs. 12,679,920. In my considered opinion, even assuming, for argument’s sake, that the appellant did not pay for the invoiced amount for its use of the plaintiff’s motor vehicles, the proper forum to lodge the claim should have been in the suit itself where it ought to have presented specific proof of its loss and not through contempt of court proceedings filed long after the entry of judgment.

15. In conclusion, I find that the instant appeal is merited and I therefore allow it and set aside the ruling of G. A. Mmasi delivered on 6th November 2020. I award the costs of the appeal to the appellant.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF JULY 2022. W. A. OKWANYJUDGEIn the presence of: -Mr. Makori for the Appellant.No appearance for Respondent.Court Assistant- Sylvia