[2015] KEHC 8503 (KLR)
The High Court found that the learned magistrate erred in declining to endorse the consent order on the basis of functus officio. The parties had freely entered into a consent to set aside the judgment and reopen the suit, and the court should have given effect to their agreement. The doctrine of functus officio...
Source-derived case information.
- Citation
- [2015] KEHC 8503 (KLR)
- Parties
- Appellant: Serfina Okello Ogile (suing as the legal representative of the estate of Joseph Ogile Olu (deceased)); Respondent: Caren Alila Omuto; Respondent: Walter Achango Oloo
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 38 of 2015
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- DAS Majanja
- Legal Topics
- Consent Orders, Review of Judgment, Functus Officio, Setting Aside Judgment
- 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
Serfina Okello Ogile (suing as the legal representative of the estate of Joseph Ogile Olu (deceased))
Appellant
Caren Alila Omuto
Respondent
Walter Achango Oloo
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court was functus officio and thus lacked jurisdiction to endorse the consent order agreed by the parties.
- 2 Whether a consent order agreed upon by all parties can be entered after judgment has been delivered.
- 3 Whether the judgment delivered on 31st May 2011 should be set aside in light of the parties' consent.
Ratio Decidendi
The High Court found that the learned magistrate erred in declining to endorse the consent order on the basis of functus officio. The parties had freely entered into a consent to set aside the judgment and reopen the suit, and the court should have given effect to their agreement. The doctrine of functus officio does not prevent a court from endorsing a consent order where the parties have compromised the judgment and agreed on the way forward. The appeal was allowed, the judgment of 31st May 2011 was set aside, and the consent order dated 21st October 2011 was entered as an order of the court. The matter was remitted to the Senior Resident Magistrate’s Court at Ndhiwa for hearing as...
Court Disposition
appeal allowed
Orders
- The judgment delivered on 31st May 2011 is set aside.
- The consent agreed upon by the parties dated 21st October 2011 is entered as an order of the court.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE HIGH COURT OF KENYA
AT HOMA-BAY
CIVIL APPEAL NO. 38 OF 2015
(FORMERLY KISII HCCA NO. 118 OF 2012)
BETWEEN
SERFINA OKELLO OGILE (suing as the legal representative
of the estate of JOSEPH OGILE OLU (deceased)........APPELLANT
AND
CAREN ALILA OMUTO.....................................1ST RESPONDENT
WALTER ACHANGO OLOO............................2ND RESPONDENT
(Being an appeal from the Ruling and Order of Hon. B. O. Omwansa, SRM at the Senior
Resident Magistrate’s Court at Ndhiwa dated 8th August 2012 in Civil Case No. 15 of 2010)
JUDGMENT
In the subordinate court, the parties to the suit filed a consent dated 21st October 2011 and signed by all the advocates on the following terms;
1. The judgment of this honourable court dated and delivered on 31st May 2011 be and is hereby reviewed /or set aside with no order as to costs.
2. The plaintiff’s suit be and is hereby re-opened and the plaintiff be at liberty to call for and tender further evidence and/or documents.
3. The defendant be and are hereby at liberty to cross examine and/or tender further evidence and/or documents if any.
4. The plaintiff to pay thrown away costs of ksh 15,000/= only to the 1st defendant.
When the consent was presented for endorsement by the court, the learned magistrate declined to endorse the consent on grounds, inter alia, that the court was fuctus officio. It is the ruling declining to endorse the consent that has precipitated this appeal.
All counsels who appeared in this matter are of the view that the learned magistrate raised the issue of fuctus officio himself and proceeded to deal with it despite the fact that parties had all agreed to the consent order directing how the matter should proceed. Furthermore, the consent had been agreed upon as a result of an appeal from the judgment which had been compromised by the parties.
In the circumstances, I now allow the appeal and order as follows;-
1. I set aside the judgment delivered on 31st May 2011.
2. I enter the consent agreed upon by the parties dated 21st October 2011.
3. I direct the matter to be heard before the Senior Resident Magistrate’s court, Ndhiwa as agreed in the consent.
4. There shall be no order as to costs.
DATED and DELIVERED at HOMA BAY this 25th day of August 2015
D.S. MAJANJA
JUDGE
Mr Oguttu-Mboya instructed by Oguttu-Mboya and Company Advocates for the appellant.
Mr Odero instructed by Odero Osiemo and Company Advocates for the 1st respondent.
Ms Khasiani instructed by Kimanga and Company Advocates for the 2nd respondent.