[2003] KEHC 493 (KLR)
The court held that once a judgment has been entered and remains undisturbed, the court becomes functus officio and cannot entertain further applications that seek to challenge or strike out the suit, except for matters relating to execution. The defendants' application, which sought to strike out the plaintiff's...
Source-derived case information.
- Citation
- [2003] KEHC 493 (KLR)
- Parties
- Plaintiff: Maria Eyer Felchin; Defendant: Zbinden John David; Defendant: Barandun Vreneli
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 76 of 2002
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection to Chamber Summons
- Outcome
- preliminary objection upheld; defendants' chamber summons struck out with costs to plaintiff
- Legal Topics
- Functus Officio, Preliminary Objection, Striking Out Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maria Eyer Felchin
Plaintiff
Zbinden John David
Defendant
Barandun Vreneli
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection to Chamber Summons
Legal Issues
- 1 Whether the court is functus officio after entering judgment and thus lacks jurisdiction to entertain the defendants' application.
- 2 Whether the preliminary objection raised by the plaintiff meets the threshold established in law.
Ratio Decidendi
The court held that once a judgment has been entered and remains undisturbed, the court becomes functus officio and cannot entertain further applications that seek to challenge or strike out the suit, except for matters relating to execution. The defendants' application, which sought to strike out the plaintiff's suit and challenge the authenticity of affidavits, was in effect an indirect appeal against the ex parte judgment. The court found that the preliminary objection raised by the plaintiff was valid, as the only matter properly before the court was execution of the judgment, not the merits of the concluded suit. Therefore, the court upheld the preliminary objection and struck out...
Court Disposition
preliminary objection upheld; defendants' chamber summons struck out with costs to plaintiff
Orders
- The preliminary objection is upheld.
- The chamber summons dated 11th September 2003 is struck out with costs to the plaintiff.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 76 OF 2002
MARIA EYER FELCHIN ………..…………… PLAINTIFF
- VERSUS -
1. ZBINDEN JOHN DAVID
2. BARANDUN VRENELI ………….……. DEFENDANT
R U L I N G
The matter listed for hearing before me in the defendants’ Chamber Summons dated 11th September, 2003 in which the defendants prayed interalia for following orders
(i) Stay of execution of judgement pending the hearing and determination of this application
(ii) An order to compel the plaintiff to present specimen signatures to the document examiner
(iii) An order to compel the plaintiff to appear in court to be cross-examined in the authenticity of the signatures on affidavits
(iv) An order to strike out the verification affidavit
(v) An order to strike out the plaintiff’s suit.
The application was supported by the affidavits of Barandun Vreneli sworn on 11th September, 2003.
When the summons was served upon the plaintiff, she filed a replying affidavit sworn by herself on 26th September, 2003 with a Notice of preliminary objection dated 1st October, 2003 to oppose the summons.
The preliminary objection had to be disposed of first before the substantive application could be considered. The gist of the plaintiff’s preliminary objection is that this court is functus officio in view of the fact that there is a judgment on record entered on 13th May, 2003 which has not been disturbed to date.
The defendants opposed the preliminary objection and stated that this court is not yet functus officio because it is busy running the execution process hence it is seized with the matter. As far as I am concerned this was the main issue which was argued at the preliminary stage.
I have to consider first the definition of a preliminary objection which was given in the case of Mukisa Biscuit Manufacturing Co. Ltd. –vs- West End Distributors Ltd. [1969] E.A. 696 where Law J.A. said at page 700:
“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”
What the plaintiff has raised touches on the jurisdiction of this court. In brief the plaintiff has pointed out that the suit has already been finalized and that there is a valid judgement which has not been disturbed. I am now being to strike out the plaintiff’s suit. In view of the material placed before me and in the light of the learned counsel’s submissions, I am convinced that the preliminary objection fall within the definition given the Mukisa Biscuitcase.
The sum total of the defendant’s application is to have the plaintiff’s suit struck out. I have keenly examined the issue in dispute, and I have come to the conclusion that what is validly on record is a judgement and not a pending suit. The suit has already been concluded. The defendants are indirectly appealing against the exparte judgement. It is trite law that this court cannot sit on appeal on its judgment. The moment a judgement has been entered the court becomes functus officio save for the process of execution.
Consequently the preliminary objection is upheld. The chamber summons dated 11th September 2003, is ordered struck out with costs to the plaintiff.
Read this day of 2003.
J.K. SERGON
JUDGE