Taib A Taib Advocates v Hirji & 2 others (Civil Case E401 of 2020) [2026] KEHC 9784 (KLR) (Commercial and Tax) (3 July 2026) (Ruling)

Taib A Taib Advocates v Hirji & 2 others (Civil Case E401 of 2020) [2026] KEHC 9784 (KLR) (Commercial and Tax) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 9784 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Case E401 of 2020 FG Mugambi, J July 3, 2026 Between Taib A Taib Advocates Plaintiff and Firoz Nurali Hirji 1st Defendant Sharok Kher Ali Hirji 2nd Defendant and Housing Finance company of Kenya Third party Ruling 1.By an application dated 15th September 2025, the 2nd Defendant filed an application seeking the following orders:i.(Spent)ii.That the court be pleased to determine whether M/s Housing Finance Company Limited may release to the Defendants funds held by it pursuant to an interlocutory order issued on 12th October 2020 in this matter.iii.That the court be pleased to clarify whether there exists an order of injunction stopping M/s Housing Finance Company Limited from releasing funds payable to the Defendants as decreed in Supreme Court Petition No. 46 of 2019, Housing Finance Co. Ltd v. Sharok Kher Hirji.iv.That an order do issue directed at Housing Finance Company Limited to forthwith release to the Defendants all and any funds held by it, being part of the decretal sum in Supreme Court Petition No. 46 of 2019, Housing Finance Co. Ltd v. Sharok Kher Hirji.v.That any other or further order as the court may deem appropriate. 2.The application followed a Judgment delivered by this Court on 22nd April 2025. The Plaintiff opposed the application by way of Grounds of Opposition and also filed a Notice of Preliminary Objection dated 18th September 2025, which is the subject of this ruling. The objection is premised on the ground that the Court is functus officio, having rendered its Judgment and issued its orders on the said date, against which no appeal, or no successful appeal, has been filed. It is contended that this Court had already exhaustively and conclusively determined the matter and ordered that the taxed costs be paid as a first charge from the balance of the decretal amounts due to the Defendants from HFCK, and that consequently the Court has no jurisdiction to entertain the present application. 3.The parties canvassed the preliminary objection by way of written submissions, which I have carefully considered. Analysis and Determination 4.Two questions fall for determination. First, whether the objection as framed qualifies as a preliminary objection properly so called. Second, and in the alternative, whether the Court is in any event functus officio as contended. (a) Whether the objection meets the legal threshold: 5.The principle in Mukisa Biscuit Manufacturing Co Ltd V West End Distributors, [1969] EA 696, is well settled, that a preliminary objection must raise a pure point of law, argued on the assumption that all the facts pleaded by the other side are correct, and must not require the ascertainment of facts or the exercise of judicial discretion on those facts. Anything that requires evidence to be adduced, or facts to be contested, cannot properly be raised by way of preliminary objection and must be canvassed on the merits. 6.Measured against this threshold, I find that the Plaintiff's objection does not qualify. Although it is anchored on the legal doctrine of functus officio, its resolution cannot be undertaken without first inquiring into disputed matters of fact and record, namely, whether the orders issued on 22nd April 2025 were final in the sense contended; whether an appeal was in fact filed against those orders, and if so its status; and, correspondingly, what precise orders remain open to the Court to make in light of that record. These are not bare points of law capable of being decided in the abstract. They require the Court to interrogate the underlying procedural history and the competing factual assertions of the parties. An objection that requires such interrogation falls outside the Mukisa threshold and is, for that reason alone, not sustainable as a preliminary objection. (b) Whether, in any event, the Court is functus officio: 7.Even if I were wrong on the foregoing, and treating the objection as properly raised, I have considered whether the Court is in truth functus officio in the manner contended by the Plaintiff. 8.In Telkom Kenya Ltd V John Ochanda, [2014] eKLR, the Court of Appeal, discussing the doctrine, observed that functus officio is an enduring principle that prevents the reopening of a matter before a court that has rendered its final decision, but that the doctrine does not bar a court from engaging with a case it has already decided. What it bars is a merit-based decisional re-engagement with a case once final judgment has been entered and a decree issued thereon. 9.This accords with the position taken by Odunga, J. (as he then was) in Mombasa Bricks & Tiles Limited & OthersV Arvind Shah & Others, [2018] eKLR, where the Court held that the doctrine seeks to achieve finality in litigation, but does not command that the moment judgment is delivered, it becomes impermissible for the court to handle every consequent, complementary, supplementary, and necessary facilitative process arising from that judgment. 10.The Supreme Court's decision in Raila Odinga V IEBC & 3 Others, Petition No. 5 of 2013, is instructive on the same point. Citing with approval Jersey Evening Post Limited V Al Thani, (2002) JLR 542, the Supreme Court affirmed that a court is functus officio only once it has performed all its duties in a particular case and its judgment or order has been perfected. My understanding is that the doctrine does not prevent a court from correcting clerical errors, or from attending to matters that flow from and are necessary to give effect to a decision already made. Its purpose is to secure finality, not to strip a court of the residual authority necessary to see its own judgment implemented. 11.Applying these principles to the present case, I do not find that what the 2nd Defendant seeks by way of the application dated 15th September 2025 amounts to a review, variation, or reopening of the Judgment and orders of 22nd April 2025. On the contrary, the reliefs sought are directed at obtaining clarity as to the effect of a pre-existing interlocutory order on funds held by a third party, and at securing compliance with and execution of the decree already issued. Such reliefs, being facilitative of and consequential to a judgment already rendered, fall squarely within the residual jurisdiction that a court retains notwithstanding the doctrine of functus officio. To hold otherwise would be to convert a doctrine meant to secure finality into an instrument that frustrates the very execution of the judgment it protects. Disposition 12.For the foregoing reasons, I find that the Notice of Preliminary Objection dated 18th September 2025 does not meet the threshold established in Mukisa case, and that, in any event, the Court is not functus officio in respect of the reliefs sought in the application dated 15th September 2025. Accordingly, the following orders do issue:i.The Notice of Preliminary Objection dated 18th September 2025 be and is hereby dismissed with costs.ii.The application dated 15th September 2025 shall proceed to be heard and determined on its merits. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026.F. MUGAMBIJUDGEDelivered in presence of:Ms Taib h/b for SC Taib for plaintiff/respondentKahii h/b for SC Mutua for 2nd defendantCourt Assistants: Lillian & Gloria