[2023] KEELC 20933 (KLR)
The court found that it had already delivered final judgment in the matter and had previously addressed the 3rd defendant's opportunity to defend the suit in two earlier rulings. As such, the court held that it was functus officio and lacked jurisdiction to entertain the application to set aside the ex parte...
Source-derived case information.
- Citation
- [2023] KEELC 20933 (KLR)
- Parties
- Plaintiff: Lydia Wanjiku Ruenji; Defendant: Thomas Omwenga; Defendant: Daniel Sibwori; Defendant: Florence Ouma Jangara
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 609 of 2014
- Procedural Posture
- Stay Application / Ruling on Application to Set Aside Ex Parte Judgment and Stay Execution
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- LN Mbugua
- Legal Topics
- Setting Aside Ex Parte Judgment, Stay of Execution, Service of Process, Functus Officio
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lydia Wanjiku Ruenji
Plaintiff
Thomas Omwenga
Defendant
Daniel Sibwori
Defendant
Florence Ouma Jangara
Defendant
Procedural Posture
Stay Application / Ruling on Application to Set Aside Ex Parte Judgment and Stay Execution
Legal Issues
- 1 Whether the court should set aside the ex parte judgment entered against the 3rd defendant.
- 2 Whether the court should stay execution of the judgment pending determination of the application.
- 3 Whether the court is functus officio after delivering final judgment.
Ratio Decidendi
The court found that it had already delivered final judgment in the matter and had previously addressed the 3rd defendant's opportunity to defend the suit in two earlier rulings. As such, the court held that it was functus officio and lacked jurisdiction to entertain the application to set aside the ex parte judgment or to stay execution. The application was therefore dismissed for lack of merit, and the applicant was advised that any further recourse lay with a higher court.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The application dated 24.7.2023 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
25 paragraphs
Ruenji v Omwenga & 2 others (Environment & Land Case 609 of 2014) [2023] KEELC 20933 (KLR) (19 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20933 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 609 of 2014
LN Mbugua, J
October 19, 2023
Between
Lydia Wanjiku Ruenji
Plaintiff
and
Thomas Omwenga
1st Defendant
Daniel Sibwori
2nd Defendant
Florence Ouma Jangara
3rd Defendant
Ruling
1. Judgment herein was delivered on 27. 4.2023. The 3rd defendant has filed an application dated 24. 7.2023 seeking the following orders;i.Spentii.Spentiii.That, pending he final determination of the present application, the Honourable Court be pleased to issue an order to stay the execution of the judgment entered into against the 3rd Defendant/Applicant on 27th April, 2023 and the 3rd Defendant/applicant be granted liberty to defend the plaintiff’s suit.iv.That, the Honourable Court be pleased to issue an order setting aside the ex-parte Judgment entered on 27th April 2023 against the 3rd defendant/applicant, albeit, upon terms.v.That, the Costs of the application be provided for.vi.Any other relief which the Honourable Court may deem fit and just to grant in the circumstances.
2. The applicant contends that she was denied an opportunity to be heard as she was never served, that her counsels on record did not file a defence for no fault of hers, and that she has a plausible defence.
3. The plaintiff opposed the application vide her replying affidavit dated 12. 9.2023, averring that the applicant was properly served with the requisite documents and notices, and that the court is now functus officio.
4. I have considered all the arguments raised herein. I find that the reasons as to why this court denied the applicant an opportunity to defend the suit are captured in two rulings delivered on the same date of 14. 2.2023. As rightly stated by the plaintiff, this court is now functus officio in this matter.
5. 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, as was stated in Brian Muchiri Waihenya v Jubilee Hauliers Ltd & another; Geminia Insurance Co. Ltd (Interested Party) [2018] eKLR, thus any adjudication on the issue ought to be taken to a higher court as was stated in SCOK case of Shollei v Judicial Service Commission & another (Application 10 (E016) of 2022) [2023] KESC 8 (KLR) (Civ) (17 February 2023) (Ruling).
6. The upshot of the findings herein is that the application dated 24. 7.2023 is found to have no merits, the same is hereby dismissed with costs to the plaintiff.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF OCTOBER, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGE