[2025] KEELC 4359 (KLR)

Kamuti Properties Limited v Okara (Environment & Land Case 49 of 2020) [2025] KEELC 4359 (KLR) (5 June 2025) (Ruling)

Neutral citation: [2025] KEELC 4359 (KLR)

Republic of Kenya

In the Environment and Land Court at Kajiado

Environment & Land Case 49 of 2020

MD Mwangi, J

June 5, 2025

Between

Kamuti Properties Limited

Plaintiff

and

Peter Riechi Okara

Defendant

Ruling

(In respect of the application dated 9th July 2024 by the plaintiff/decree holder seeking leave to execute the decree issued herein before taxation of costs and that the OCS Kiserian Police Station to provide security and supervision of the execution process) 1. The application by the plaintiff/decree-holder is premised on the provisions of Section 94 of the Civil Procedure Act which empowers the court upon an application, as the one by the decree-holder in this case, to allow execution before ascertainment of costs by way of taxation. The applicant avers that execution of the decree by way of eviction and demolition of the illegal structures on the suit property will have cost implications. It is therefore prudent that the decree be executed and the costs ascertained later on.

2. The defendant/respondent in response to the application raised a preliminary objection dated 4th April 2025 arguing that the application offends the doctrine of functus officio.

Issues for Determination 3. The issues for determination in this application are rather straight forward. The issues are whether this court is functus officio or not and whether the court can issue the orders sought by the Plaintiff/Applicant

Analysis and determination 4. In the case of Raila Odinga –Vs- IEBC & 3 others Petition No 5 of 2013, the Supreme Court of Kenya cited with approval a paragraph from, ‘The origins of the Functus Officio Doctrine with Specific Reference to its Application in Administrative Law’ by ‘Daniel Malan Pretorius’ as follows:-…….”The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter. The (principle) is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”

5. The Supreme Court also referred to the case of Jersey Evening Post Limited –Vs- A. Thani (2002) JLR 542, at page 550 where the court had stated 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 judgment 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 on adjudication must be taken to a higher court if that right is available.”

6. The Supreme Court of Kenya nonetheless noted that the doctrine does not prevent the court from correcting clerical errors, under the slip rule; but 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.

7. In the case of Telkom Kenya Ltd –Vs- John Ochanda (2014) eKLR, cited by the respondent herein, the Court of Appeal too while discussing the principle of functus officio noted as follows: -“Funtus Officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar, is a merit based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued.”

8. I wish the respondent had read further than the above citation because the court went further to point out the various exceptions to the principle of functus officio, notably: - Application for stay (of execution)

Application to correct the decree (under the slip rule)

Application for accounts;

Application for execution including garnishee proceedings;

Application for review, and

Applications under section 34 of the Civil Procedure Act.

9. The application by the plaintiff in this case is an application for execution. It falls within the exceptions to the principle of functus officio. The applicant is not inviting the court for a merit based decisional re-engagement with its judgement. The preliminary objection by the respondent is therefore unmerited.

10. That said, I find merit in the application by the plaintiff. I am persuaded that it is in the interests of justice that the application be allowed as prayed.

11. Consequently, the preliminary objection by the respondent is dismissed while the application by the plaintiff is allowed. The costs of the preliminary objection and the application are awarded to the plaintiff/applicant against the defendant/respondent.

It is so ordered.

DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 5TH DAY OF JUNE 2025. M.D. MWANGIJUDGEIn the virtual presence of:Mr. Mbindyo for the Plaintiff/ApplicantMr. Aunga for the Defendant/RespondentCourt Assistant: MpoyeM.D. MWANGIJUDGE