https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10327

Simiyu v Inanga (Anti-Corruption and Economic Crimes Civil Suit E40 of 2024) [2026] KEHC 10327 (KLR) (16 June 2026) (Judgment) Neutral citation: [2026] KEHC 10327 (KLR) Republic of Kenya In the High Court at Bungoma Anti-Corruption and Economic Crimes Civil Suit E40 of 2024 RK Ondieki, J June 16, 2026 Between Leila Nafula Simiyu Appellant and Richard Inanga Respondent (Being an Appeal against the Judgment by Hon. Maloba (SPM) in Bungoma CMCC No. 412 of 2018, Delivered on 14th March, 2024) Judgment 1.Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing. Lord Simon’s speech in Watt Vs. Thomas [1947] AC, 484 at p. 485 is recorded that an aappellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies, is entitled to great weight. Lord Simon further said, that apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. 2.In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion. 3.In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123, it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally. 4.In Bundi Marube Vs Joseph Omkoba Nyamuro[1982-88]IKAR, Hancok J A, said that a court of appeal will not normally interfere with a finding of fact by the trial court unless, it is based on no evidence, or on a representation of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching he findings he did. 5.In the case of Rahma Tayab & another Vs Anna Mary Kinamu [1982-88]1KAR 90 Law JA stated that an appellate court will be shown to interfere with a judge’s findings of fact based on his assessment of the credibility and demeanor of witnesses who have given evidence before him. 6.On 22nd June, 2018, the appellant was involved in a road traffic accident involving the Respondent’s motor vehicle and upon hearing the matter on merit, judgement was delivered on the 16th June, 2023. Come 4th January, 2024, the Respondent filed an application for stay of proceedings pending hearing and determination of Bungoma CMCC No. 432/2023. It was opposed and that notwithstanding, a ruling was delivered on 14th March, 2024 granting the order of stay of proceedings. 7.In his Ruling delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, he relied on the following grounds;a.That the learned Trial Magistrate erred in law and fact by failing to appreciate that upon delivery of Judgement, learned Magistrate had become functus officio.b.That the learned Trial Magistrate issued a Ruling or order which was unreasonable.c.That the learned Trial Magistrate erred in law and fact by failing to consider the submissions of the Appellant.d.That the learned Trial Magistrate erred in law and fact by failing to take into account the ruling delivered on the 30th September, 2023.1.The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal. Analysis and Determination: 8.I have with singleness of mind looked at the four lamentations by the Appellant and to my understanding, they can be collapsed into one issue of determination. Whether or not, the Court was seized with Jurisdiction to stay the proceedings after delivery of Judgement. 9.Black’s Law Dictionary defines a preliminary Objection as an objection which, if upheld would render further proceedings before the tribunal impossible or unnecessary. May I sample a few decisions of the superior courts which will act as my anchor.a.The locus classicus authority on Preliminary objections is the case of the case of Mukisa Biscuits Manufacturing Ltd Vs West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection. The court observed that a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Sir Charles Newbold P stated that the first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. 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. The improper raising of points by way of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop.b.In the same vein, Hon. Ojwang, J. (as he then was) in Oraro Vs. Mbaja [2005] 1 KLR 141 expressed the view, which I hereby adopt, that the principle is abundantly clear. A "preliminary objection" correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, 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...Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.c.Likewise, in Hassan Ali Joho & Another Vs Suleiman Said Shabal & 2 Others [2014] eKLR, the Supreme Court stated that: “A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Additionally, the Court of Appeal in Nitin Properties Ltd Vs Jagjit S. Kalsi & Another [1995] eKLR pointed out that a Preliminary Objection 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.d.The Supreme Court in Independent Electoral & Boundaries Commission Vs Jane Cheperenger & 2 Others [2015] eKLR observed that the true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits. 10.The list is not exhaustive. 11.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. In the Canadian case of Chandler Vs Alberta Association Of Architects [1989] 2 S.C.R. 848, Sopinka J, said that the general rule that a final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re St. Nazaire Co., (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:a.Where there had been a slip in drawing it up, and,b.Where there was an error in expressing the manifest intention of the court. These two exceptions have been set out in Paper Machinery Ltd. Vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186, The Supreme Court in Raila Odinga Vs IEBC cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 in which the learned author stated that 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. 12.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. There do therefore exist certain exceptions and these have been captured thus in Jersey Evening Post Ltd Vs Ai Thani [2002] JLR 542 at 550, also cited and applied by the Supreme Court. 13.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 or adjudication must be taken to a higher court if that right is available.” 14.It is without hesitation therefore, I hold which I do, that the orders of stay of proceedings after judgement were not available to the trial magistrate. However, if it was a review of errors understood under Order 45 of the Civil Procedure Rules as read together with section 80, Laws of Kenya, it would have been understood. 15.The court makes a finding that the appeal is meritorious.a.The Appeal is upheld.b.The order of stay of proceedings are, vacated. DELIVERED VIRTUALLY THIS 16TH JUNE, 2026 IN THE PRESENCE OF THE APPELLANT, THE RESPONDENT AND BRIAN- COURT ASSISTANT.ORDERS ACCORDINGLY.HON. R.K. ONDIEKI.JUDGE.