[2008] KEHC 887 (KLR)
The court held that it could not set aside the leave and stay orders because a consent order had already been entered and recognized by a judge of coordinate jurisdiction, rendering the court functus officio. The doctrine of functus officio precludes the court from revisiting or re-opening the matter. Furthermore,...
Source-derived case information.
- Citation
- [2008] KEHC 887 (KLR)
- Parties
- Applicant: Republic; Respondent: City Council of Nairobi; Applicant: Karen-Ngong View Estate (Welfare Group) suing through its Chairman David M. Mbithii, Peter Muiruri, Vincent Kambo, Hon. Paul Muite, Eric Muriga Chege, Ruth Mugure Ngaruiya, Margaret Muiruri, Prof. J. Maitha, Joseph N. Ouma, Nyambura M. Gchuki, Peter Ouma Nagemi, Peter M. Nteere, Dr. Edith Muite
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 519 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Leave and Stay Orders
- Outcome
- application struck out
- Legal Topics
- Judicial Review, Functus Officio, Consent Orders, Leave and Stay Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
City Council of Nairobi
Respondent
Karen-Ngong View Estate (Welfare Group) suing through its Chairman David M. Mbithii, Peter Muiruri, Vincent Kambo, Hon. Paul Muite, Eric Muriga Chege, Ruth Mugure Ngaruiya, Margaret Muiruri, Prof. J. Maitha, Joseph N. Ouma, Nyambura M. Gchuki, Peter Ouma Nagemi, Peter M. Nteere, Dr. Edith Muite
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Leave and Stay Orders
Legal Issues
- 1 Whether the court can set aside leave and stay orders after a consent order has been entered and the court has become functus officio.
- 2 Whether affected parties in judicial review proceedings can resurrect settled matters or must institute separate proceedings.
Ratio Decidendi
The court held that it could not set aside the leave and stay orders because a consent order had already been entered and recognized by a judge of coordinate jurisdiction, rendering the court functus officio. The doctrine of functus officio precludes the court from revisiting or re-opening the matter. Furthermore, affected parties in judicial review proceedings do not have independent causes of action that would allow them to resurrect a settled matter; their recourse, if any, is to institute separate proceedings. The application was therefore struck out.
Court Disposition
application struck out
Orders
- The application dated 6th March 2008 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Civ. Case 519 of 2007
REPUBLIC.....................................................................................APPLICANT
AND
CITY COUNCIL OF NAIROBI..............................................RESPONDENT
EX-PARTE
KAREN-NGONG VIEW ESTATE (WELFARE GROUP)
Suing through its Chairman
DAVID M. MBITHII
PETER MUIRURI
VINCENT KAMBO
HON. PAUL MUITE
ERIC MURIGA CHEGE
RUTH MUGURE NGARUIYA
MARGARET MUIRURI
PROF. J. MAITHA
JOSEPH N. OUMA
NYAMBURA M. GCHUKI
PETER OUMA NAGEMI
PETER M.NTEERE
DR. EDITH MUITE.................................................................................................................. SUBJECTS
RULING
The application dated 6th March 2008 seeks inter-alia to set aside the order for leave and stay granted by myself of 21st May 2007.
However it is common ground that following a consent order filed in the proceedings and given recognition by the Court (Lady Justice Ang’awa) on 18th February 2008, when the learned judge ruled that the matter was functus officio, it is a matter I cannot re-open - the functus officio order having been made by a judge of co-ordinate jurisdiction. The tree having been cut so to speak it came down with all its branches as well. In my view affected parties do not in judicial review proceedings have different causes of action of their own and where parties to the proceedings settle the matter,
it cannot be resurrected by the affected parties. They can only institute separate proceedings. They are served under O 53 Rule 3 with the Notice of Motion in order to articulate their interests in that cause. Their remedy (if any) lies elsewhere.
The application is struck out.
I give no order as to costs.
DATED and delivered at Nairobi this 3rd day of October, 2008.
J.G. NYAMU
JUDGE`