[2021] KEHC 3616 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CIVIL APPEAL NO. 32 OF 2019

MR. LAWRENCE MOSES ESILIA.....................1ST APPELLANT

LEMSOFT CONSULTANCY LIMITED............2ND APPELLANT

VERSUS

OFFICE OF THE ATTORNEY GENERAL AND

THE DEPARTMENT OF JUSTICE.........................RESPONDENT

[Being an Application that relates to Kisumu Chief Magistrate’s Court Civil Application114 of 2013 and 629 of 2015, Kisumu High Court Civil Appeal No. 100 of 2013 and Kisumu Court of Appeal Civil Applications 1 of 2015 and 65 of 2015]

RULING

The Amended Notice of Motion dated 21st February 2021 was filed by the 1st Appellant. It is an application for the following reliefs;

“1. THAT, this honourable Court be pleased to set aside or vary the unsigned, unsealedand unreceived Judgement of HonourableFred Ochieng by substituting it with thecorrect Constitutional and Human RightsCourt Judgment/Order, based on prayeritems numbers two and five of theMemorandum of Appeal and our lettersto the Constitutional and Human RightsCourt division dated 18th March 2020,18th July 2020 and 18th January 2021respectively.

2. THAT, this honourable Court be pleasedto order a Constitutional and a HumanRights Court rehearing based on prayeritem number 2 of the Memorandum ofAppeal. If need be, for the matter to betransferred to Nairobi for judgementbased on our letters to the Constitutionaland Human Rights Court division dated18th March 2020, 18th July 2020 and18th January 2021 respectively.

3. THAT, this honourable Court be pleasedto give the order being asked for as setout as follows:-

“The application of the Appellant(s)dated 3th March 2019 be allowedwith costs as the ruling of Hon.R.M. Ndombi (RM) dated 6th November2018 is found not to be in line withthe Kisumu Chief Magistrate’s Courtdocument dated 29th June 2018 thatrequires the Appellant(s) to kindlyremit to the Kisumu Chief Magistrate’sCourt Kshs 56,416. 00/= being furthercourt fees on an award of Kshs as perthe Plaint dated 12th October 2015 asgeneral damages e.t.c”

4. THAT, this honourable Court be pleasedto add the Magistrates and Judges VettingBoard as an interested party in thismatter for the reasons available duringthe day of hearing.

5. THAT, this Honourable Court be pleasedto treat this Application as an out oftime application due to the Covid-19Pandemic.

6. THAT, the costs of this application beprovided for.”

1. The application was supported by an affidavit which was sworn by the 1st Appellant. He deponed that when this Court had fixed the case for hearing, the Court did not specify whether or not it would transfer the case to the Constitutional and Human Rights Court Division

“for judgement/orders based on Prayer item number two of the Memorandum of Appeal.”

2. In the circumstances, the Applicant;

“…….. assumed that the case was to be transferred to the Nairobi’s Constitutional and Human Rights Court Division, as the Kisumu High Court Division does not handle Constitution and Human Rights Matters.”

3. The Applicant also deponed that this Court gave an unsigned, unsealed and unreceived judgment/order. It was for that reason that he asked the court to set aside or vary the said judgment.

4. The Applicant said that he had not been given an opportunity to raise the issue concerning the proposed transfer of the matter to the Constitutional and Human Rights Court Division.

5. He blamed this Court for causing confusion.

6. As he believes that he has a good claim against the Respondent, the Applicant asserted that it was only fair that he be allowed to pursue the said claim.

7. When the Applicant was canvassing the application, he said that the copy of the judgment which he received, was not signed.

8. By dint of the provisions of Order 21 Rule 3 (1)of the Civil Procedure Rules, a judgment pronounced by the Judge who wrote it, shall be dated and signed by him at the time of pronouncing it.

9. In this instance both the original hand-written Judgment, as well as the typed version thereof were dated and signed in court, at the time when the judgment was pronounced.

10. In my understanding, when any party to a case, or any other person applies for a copy of the judgment, the same shall be printed from the computer. There is no legal requirement that copies of judgments be signed or dated before the same are made available to the parties who had asked for them.

11. Therefore, although the Applicant received an unsigned copy of the judgment, that did not, and could not, invalidate the judgment which had been pronounced.

12. Once the Court had delivered its judgment in the appeal, the Court became functus officio.

13. In the case of TELKOM KENYA LIMITED Vs JOHN OCHANDA, CIVIL APPEAL NO. 60 OF 2013, the Court of Appeal noted that once a judgment is pronounced, the court that made the said pronouncement became functus officio. The learned Judges of Appeal went to explain the meaning, 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. It is a doctrine that has been recognized in the common law tradition from as long ago as the latter part of the 19th Century.”

14. The Court also made reference to the following words of the Supreme Court, in the case of RAILA ODINGA & 2 OTHERS Vs I.E.B.C. & 3 OTHERS [2013]eKLR;

“…. The functus officio doctrine is one of the mechanisms by means of which the law gives expression tothe 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.”

15. By asking this Court to set aside or vary the judgment delivered on 10th February 2020, the Applicant is calling upon me to violate the doctrine of functus officio. I find no legal foundation upon which I could violate the principle of finality, by exercising my adjudicative authority twice, over the same matter.

16. When the Applicant was asked how he expected this Court to know that he wished to have the appeal transferred to Nairobi, he said that it is because the matter was of a constitutional nature.

17. He said that he was going to ask the Court to have the case transferred, but the Court did not give him an opportunity to do so.

18. The record will show that the Applicant was given an opportunity to make written submissions. He provided submissions spanning 12 pages, plus 11 pages of authorities.

19. As the Applicant has conceded before me, he did not raise the issue of the transfer of the case, in his submissions.

20. In the event, the question about whether or not the case should be transferred to the Constitutional and Human Rights Court Division, in Nairobi, never arose for determination when the Court was hearing the appeal.

21. And as the Court has already pronounced itself on the appeal, it cannot now re-open the appeal.

22. Accordingly, the application dated 21st February 2021 is without merit; and it is therefore dismissed.

23. The Applicant shall pay to the Respondent, the costs of the application.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 21ST DAY OF SEPTEMBER 2021

FRED A. OCHIENG

JUDGE