[2023] KEELC 20520 (KLR)
The court found that the issues raised by the 2nd defendant in the application had already been determined in its earlier ruling dated 16 February 2023. The court emphasized that it cannot sit on appeal over its own decisions and is therefore functus officio regarding those matters. As a result, the application to...
Source-derived case information.
- Citation
- [2023] KEELC 20520 (KLR)
- Parties
- Plaintiff: Ismail Rahimtulla Trustees Registered; Plaintiff: Sony Holdings Limited; Defendant: Joint Administrators – Spencon Kenya Limited (Under Administration); Defendant: Pragnesh Jitendra Patel; Defendant: Ashutosh Sharma
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 375 of 2017
- Procedural Posture
- Notice of Motion Application / Ruling on Application to Set Aside Formal Proof Orders and Deem Defence Properly Filed
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- LN Mbugua
- Legal Topics
- Setting Aside Orders, Formal Proof, Interlocutory Judgment, Service of Process
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
Ismail Rahimtulla Trustees Registered
Plaintiff
Sony Holdings Limited
Plaintiff
Joint Administrators – Spencon Kenya Limited (Under Administration)
Defendant
Pragnesh Jitendra Patel
Defendant
Ashutosh Sharma
Defendant
Procedural Posture
Notice of Motion Application / Ruling on Application to Set Aside Formal Proof Orders and Deem Defence Properly Filed
Legal Issues
- 1 Whether the court should set aside the orders directing the matter to proceed as a formal proof.
- 2 Whether the 2nd defendant's defence should be deemed as properly filed.
- 3 Whether the date set for formal proof should be converted to a full hearing date.
Ratio Decidendi
The court found that the issues raised by the 2nd defendant in the application had already been determined in its earlier ruling dated 16 February 2023. The court emphasized that it cannot sit on appeal over its own decisions and is therefore functus officio regarding those matters. As a result, the application to set aside the formal proof orders, deem the defence properly filed, and convert the formal proof date to a full hearing was dismissed. The court reaffirmed the principle that once a court has rendered a decision on an issue, it cannot revisit or overturn that decision in the same proceedings unless through a proper appellate process.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The application dated 24.5.2023 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
25 paragraphs
Ismail Rahimtulla Trustees Registered & another v Joint Administrators – Spencon Kenya Limited (Under Administration) & 2 others (Environment & Land Case 375 of 2017) [2023] KEELC 20520 (KLR) (5 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20520 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 375 of 2017
LN Mbugua, J
October 5, 2023
Between
Ismail Rahimtulla Trustees Registered
1st Plaintiff
Sony Holdings Limited
2nd Plaintiff
and
Joint Administrators – Spencon Kenya Limited (Under Administration)
1st Defendant
Pragnesh Jitendra Patel
2nd Defendant
Ashutosh Sharma
3rd Defendant
Ruling
1. Vide a Notice of Motion Application dated 24. 5.2023, the 2nd defendant prays that the court orders of 29. 3.2018 and 24. 9.2020 directing the matter to proceed as a formal proof be set aside, that their defence dated 20. 4.2018 be deemed as properly filed and that the date set for formal proof 6. 12. 2023 be converted to a full hearing date.
2. It is averred that the plaintiff never protested the issue of service of the defence, nor did they serve the 2nd defendant with a notice of entry of interlocutory judgment.
3. The plaintiffs have opposed the application through a Replying Affidavit of one Duncan Kibunyi, a Chief Finance Officer of Althaus Management & Consultancy Ltd who are maintaining the books of the plaintiffs in relation to the leases in Rahimtulla Trust Building. The said Replying Affidavit is dated 20. 6.2023.
4. I have considered all the arguments raised herein. I find that this court pronounced itself vide its ruling dated 16. 2.2023 where the issues being raised by the applicant were determined (see paragraph 21,22 and 24 of the said ruling). This court cannot sit on appeal on its own ruling. As such the application dated 24. 5.2023 is hereby dismissed with costs of the plaintiff.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 5TH DAY OF OCTOBER, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Okatch and Obegi for the PlaintiffMwindi for Applicant for 2nd DefendantCourt Assistant: Eddel