[2022] KEHC 624 (KLR)

King’ori & 2 others v Wambugu (Succession Cause 2543 of 2004) [2022] KEHC 624 (KLR) (Family) (8 March 2022) (Ruling)

Neutral citation: [2022] KEHC 624 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Succession Cause 2543 of 2004

LA Achode, J

March 8, 2022

IN THE MATTER OF THE ESTATE OF JOSEPHAT KING’ORI NJOGE (DECEASED)

Between

Daniel Gicheru King’ori

1st Applicant

John Mwangi King’ori

2nd Applicant

Peter Macharia King’ori

3rd Applicant

and

Anthony Wambugu

Respondent

Ruling

1. This Court on April 9, 2019 rendered judgment in which it determined that the Protestor/Respondent is entitled to ½ of the portion of the deceased’s estate, being the rightful share of the estate of Esther Wanjiru Wambugu.

2. On August 27, 2019 Daniel Gicheru King’ori, John Mwangi King’ori and Peter Macharia King’ori (herein after the Applicants), filed a chamber summons application seeking review of the judgment issued on 9th April, 2019. They also sought orders that the Deputy Registrar do trace the original court proceedings in Nyahururu Resident Magistrate’s Court Land Case No. 4 of 1983 and Nakuru High Court Civil Appeal No. 9 of 1987. Lastly that the court do reopen the matter to allow introduction of further evidence.

3. In response to the said chamber summons, Anthony Wambugu (herein after the Respondent) filed a Preliminary Objection dated September 20, 2019 brought on grounds inter alia that;a.M/S Gachiengo Gitau & Co Advocates is not properly on record for the Applicantsb.The court has no jurisdiction to entertain this application as it is functus officio as far as the issues raised are concerned.c.The application is incompetent, bad in law and an abuse of the court process.

4. This Preliminary Objection is thus the subject of this Ruling. The Objection was canvassed by way of written submissions. The Respondent filed submissions dated November 22, 2019, in which he contended that the Petitioners were up to the time of judgment given by this court, on April 9, 2019, represented by the firm of M/s Kimandu & Ndengwa Advocates and that no notice of change of advocates was filed. Further that the court did not grant M/s Gachiengo Gitau & Co Advocates leave to come on record from the Petitioners, hence the application dated August 27, 2019 is incompetent. To buttress their assertion they relied on the case of S.K Tarwadi v Muehlemann [2019] eKLR

5. Counsel relied on the case of Chacha Mwita Mosenda v Baya Tsuma Baya & 2 others [2017] eKLR, to further submit that this court is functus officio since all the issues intended to be raised by the Petitioner were conclusively dealt with and determined in the court’s judgment and it would be irregular to review the judgment. He relied on the case of Re Esatate of Kinuthia Mahuti (Deceased)[2018] eKLR.

6. Counsel for the Applicants filed submissions dated 18th December 2019. He submitted that the firm of Gachiengo Gitau & Co Advocates filed a notice of appointment of advocates before filing the application dated August 27, 2019 and thus, were properly on record. He further submitted that it has been difficult for the petitioners to access the court records in Nyahururu Resident Magistrates Court Land Case No. 4 of 1983 and Nakuru High Court Civil Appeal No. 9 of 1987 which contain invaluable, relevant data that would change the course of the case. He relied on the Court of appeal case Sup No 20 of 2013 Muiru Coffee Estate v Kenya Commercial Bank Ltd & Another, C.A 226 of 2018 Abdi Nassir nuh v Abdulrehema Hassan Halkano & 2 Others. He urged that it would be a failure of justice for the court not to consider the proceedings in the aforementioned cases.

7. The circumstances in which a preliminary objection may be raised was explained by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd [1969] EA 696, as follows:“a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

8. The effect of a preliminary objection if upheld, renders any further proceedings before the court impossible or unnecessary. A preliminary objection cannot therefore be raised if any fact requires to be ascertained. In the case of Oraro v Mbaja [2005]1 KLR 141, the court held that any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. The Court of Appeal also stated in Mukisa Biscuit Company v West End Distributors Ltd (supra) that a preliminary objection cannot be raised if what is sought is the exercise of judicial discretion.

9. A preliminary objection MUST raise a point of law. Where there are contested facts that require the court’s indulgence and determination, the Preliminary Objection must fail. Further, the facts argued should be correct requiring no further evidence to prove their certainty. (See David Karobia Kiiru v Charles Nderitu Gitoi & nother [2018] eKLR)

10. The issue to be considered to determine whether the P.O succeeds or fails are:i.Whether M/S Gachiengo Gitau & Co. Advocates, Advocates for the Applicants is properly on recordii.Whether this Court is Functus officio

11. The 1st issue is whether the Applicants’ Advocates, M/S Gachiengo Gotau & Co. Advocates, are properly on record. The court is guided by Order 9 Rule 7 of the Civil Procedure Rules which provides;“Where a party, after having sued or defended in person, appoints an advocate to act in the cause or matter on his behalf, he shall give notice of the appointment, and the provisions of this Order relating to a notice of change of advocate shall apply to a notice of appointment of an advocate with the necessary modifications.”

12. Going further, this court considered Order 9 Rule 9 Civil Procedure Rules that states as follows:-“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—a)Upon an application with notice to all the parties; or(b)Upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”

13. Based on the above provisions it is evident that before a Notice of Change/ appointment of Advocates is filed after judgment has been delivered, it must be preceded by either an application wherein an incoming advocate seeks leave to come on record for a party, or by a consent between the outgoing and proposed incoming advocate or party intending to act in person as the case may be.

14. In the instant case the Applicants’ advocate prior to the impugned judgment was Kimandu & Ndegwa Company Advocates. Afterward the 2nd Petitioner acted pro se and on 13th August 2019, the firm of Gachiengo & Co advocates filed a notice of appointment of advocates dated 13thAugust 2019. There is no evidence that leave of court was sought or granted, for the firm of Gachiengo & Co Advocates to come on record or that any consent thereto was filed. This clearly offends the mandatory express provisions of Order 9 rule 9 Civil Procedure Rules. I therefore find that M/s Gachiengo & Co. Advocates are not properly on record.

15. In the case of S.K. Tarwadi V Veronica Muehlemann[2019] eKLR this court noted as follows;“In my view, the essence of Order 9 Rule 9 CPR is to protect advocates from mischievous clients who will wait until a judgment has ben delivered and then sack the advocate and either replace him with another advocate or act in person. The provision is therefore an important one and cannot be wished away”

16. On the second issue, the Respondent alleges that this Court is functus officio as far as the issues raised in the Application are concerned. The Black’s Law Dictionary 10thedition, Page 787 defines 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”This principle implies that once a court passes a valid decision after a hearing, it no longer has authority to re-examine the matter and thus cannot reopen the case. This doctrine limits the authority of the court to take up such a case once final orders have been pronounced. The Court of Appeal in the case of Telcom Kenya ltd v John Ochanda [2014] eKLR, stated as follows;“Functus 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 general rule that final decisions of a Court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division.”

17. Similarly the Supreme Court in Raila Odinga v IEBC & 3 Others Petition No. 5 of 2013, cited “The Origins of the Functus Officio Doctrine with Specific Reference to its Application in Administrative Law” by Daniel Malan Pretorious 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.”

18. The Applicants’ main grounds for the application was that the court records in Nyahururu Resident Magistrate’s Court Land Case No. 4 of 1983 and Nakuru High Court Civil Appeal No. 9 of 1987, were extremely material in this case. Further that both parties were unable to secure them before the judgment dated 9th April 2019 due to red tape at the respective registries.

19. This court while rendering its decision on 9th April 2019, noted in regard to the extensively mentioned Nyahururu Resident Magistrate’s Court Land Case No. 4 of 1983 and Nakuru High Court Civil appeal No. 9 of 1987 that “only bits of the proceedings and affidavit were provided”. However, it went further to observe that the Protestor had attached the Judgments from both cases, which were in favour of his claim. It is therefore uncertain what documents the Applicants would produce from those proceedings to change the decision of this court when there exists a binding final pronouncement of the court based on both decisions in Nyahururu Resident Magistrate’s Court Land Case No. 4 of 1983 and Nakuru High Court Civil Appeal No. 9 of 1987 respectively.

20. Consequently, the court having in its ruling determined, based on the records of the aforementioned cases, that the protestor is entitled to half of the portion of the deceased’s estate, this court is indeed now functus officio in the matter.

21. The upshot of the foregoing analysis is that the Preliminary Objection has merit. Accordingly the chamber summons application dated 27th August 2019 is hereby struck out.

22. Costs are awarded to the Protestor/Respondent.

DATED SIGNED AND DELIVERED IN VIRTUAL COURT THIS 8TH DAY OF MARCH 2022L.A. ACHODEIn the presence of …………………………………………… Advocate for the ApplicantsIn the presence of ………………………………………….. Advocate for the Respondent