[2023] KEHC 19642 (KLR)

TMG & another v AP (Matrimonial Cause 1 of 2016) [2023] KEHC 19642 (KLR) (5 July 2023) (Ruling)

Neutral citation: [2023] KEHC 19642 (KLR)

Republic of Kenya

In the High Court at Mombasa

Matrimonial Cause 1 of 2016

G Mutai, J

July 5, 2023

Between

TMG

1st Applicant

QFG (Minor Suing Through his Mother and Next Friend TMG)

2nd Applicant

and

AP

Respondent

Ruling

1. The application before the court is dated May 16, 2022. It seeks the following orders: -(a)Spent;(b)That pending the hearing and determination of the Notice of Motion dated May 13, 2022, filed as Civil Application No Sup E003 of 2022 in the Court of Appeal, a temporary injunction do issue retraining the defendant, his agents, servants and/or employees from interfering with the plaintiffs’ use and enjoyment of all that property known as Number CR 40958/7 Sub–division 17235 (Original No 13324/4 of Section I Mainland North) measuring 0. 0330 hectares or thereabouts situated in Shanzu, Serena within the Republic of Kenya;(c)That pending the hearing and determination of the appeal that is to be filed in the Supreme Court against the decision made in Mombasa Civil Appeal No 138 Of 2019; Theresa Muthoni Gitonga & Another versus Aldo Pasini, a temporary injunction do issue restraining defendant, his agents, servants and/or employees from interfering with the plaintiffs’ use and enjoyment of all that property known as Number CR 40958/7 Sub–division 17235 (Original No 13324/4 of Section I Mainland North) measuring 0. 0330 hectares or thereabouts situated in Shanzu, Serena within the Republic of Kenya;(d)That costs of this application be provided for.

2. The application is premised on the grounds therein stated and also on the supporting affidavit of the 1st Plaintiff sworn on May 16, 2022.

3. The applicant stated that she at all material times resided in the suit property by virtue of her intimate relationship with the respondent who treated her as a wife and the 2nd Plaintiff as his own son. That the Respondent evicted her together with the 2nd Plaintiff from the suit property in 2015 with the intentions of selling the same. She filed a suit which was dismissed, filed an appeal which was also dismissed. She then filed a Notice of Appeal so as to file an appeal against the said judgement in the Supreme Court. She also filed an application in the Court of Appeal for certification to the effect that the said appeal merits to be filed in the Supreme Court.

4. She further stated that the judgement was delivered on May 6, 2022. Shortly after the judgment was delivered the Respondent’s advocate served her with a demand letter dated May 9, 2022 asking them to vacate the suit property or in default they would be evicted forcefully. The 1st Applicant is thus apprehensive that they will be forcefully evicted from the suit property unless the application is granted. She argues that unless the application is granted they will suffer irreparable loss as they will be rendered homeless and the appeal to the Supreme Court shall thereby be rendered nugatory yet the appeal raises triable issues.

5. In response to the application the Respondent filed a Notice of Preliminary Objection dated on May 23, 2022 and filed on May 24, 2022. The first ground of the objection is that the application and the matter herein are res judicata as the issues that are raised in the application have been considered on merit and judgement delivered by Hon. Lady Justice Thande on the April 10, 2019. Secondly that this honourable court has no jurisdiction to entertain the application dated the 16th of May 2022 as it is ‘functus officio’ having fully discharged its duty in the matter and the same now resting with the Court of Appeal in Appeal Number 138 of 2019. Thirdly that the application is hopelessly incompetent, fatally defective, an abuse of the court process and the same ought to be dismissed forthwith.

6. When the matter came for directions on February 13, 2023 the court directed that the same be canvassed by way of written submissions. The applicants through their advocates Gikandi & Company Advocates filed their written submissions dated and filed on March 27, 2023. Counsel highlighted the submissions on May 10, 2023.

7. Counsel submitted that the Preliminary Objection does not raise pure points of law and thus it ought to be dismissed. It was also urged that the Respondent has not provided any evidence on the grounds raised in the preliminary objection.

8. Counsel further submitted that the major issue touches on the 2nd Plaintiff who is still a minor and the provisions of Article 53 of theConstitution apply in the determination of the dispute between the 1st Applicant and the Respondent. The 2nd Applicant has known no other home other than the suit property. That the Respondent had willingly taken parental responsibility of the 2nd Applicant and even commenced proceedings aimed at adopting him. The Respondent took the 2nd Applicant for overseas visits. The 2nd Applicant would happily see his mother oversees and supervise the construction of the house standing on the suit property knowing that he would grow up in the said house.

9. Counsel submitted that this is the right court to adjudicate the dispute as the eviction is based on the judgement of this honourable court and thus this application is not res judicata.

10. It was also argued that the right to ownership and use of private property is given recognition under Article 40 of theConstitution of Kenya, 2010. The Applicants believe that they have a right to the suit property and for that reason they intend to appeal to the Supreme Court. Counsel urged the court to allow the orders sought so as to preserve the suit property.

11. On the issue of jurisdiction counsel submitted that the high court has supervisory jurisdiction over all subordinate courts and any other persons, body or authority exercising a judicial or quasi-judicial function. Thus this is the proper forum for the Applicants. Counsel urged the court to allow the application.

12. Have considered the application, the Preliminary Objection and the applicant’s submission and the issues that arises for determination are: -(a)Whether this court is functus officio;(b)Whether this matter is res judicata;(c)Whether the orders sought should issue.

13. The Applicants filed a plaint dated 4th September 2015 against the Respondent herein seeking permanent injunction restraining the defendant, his agents, servants and/or employees from interfering with the plaintiffs use and enjoyment of all that property known as number CR 40958/7 Sub-division 17235(Original No 13324/4 of Section I Mainland North) measuring 0. 0330 hectares or thereabouts situated in Shanzu Serena, declaration that the 1st Plaintiff has an equitable interest in all that property known as CR. 40958/7 Sub-division 17235 (Original No 13324/4 of Section I Mainland North) measuring 0. 0330 hectares or thereabouts situated in Shanzu Serena as well as general damages.

14. Lady Justice M. Thande in her judgement delivered on April 10, 2019 dismissed the plaintiffs/applicants’ suit, allowed the defendant’s/respondent’s counterclaim and made the following declarations and orders; no marriage exists between the 1st Plaintiff and the Defendant; the Defendant has no obligation to maintain the Plaintiffs; the Plaintiffs do deliver to the Defendant vacant possession of the suit property within 3 months and in any event not later than July 31, 2019. The court declined to make an award as to costs.

15. Being dissatisfied with the judgment of the court the applicants herein filed an appeal to the Court of Appeal vide Civil Appeal No 138 of 2019. The Court of Appeal in its judgement delivered on May 6, 2022 dismissed the appeal and confirmed the judgement, declarations and orders of the learned trial judge.

16. Aggrieved the appellants/applicants herein filed a notice of appeal dated May 13, 2022 on their intention to appeal to the Supreme Court against the decision of the Court of Appeal. The applicants also filed a Notice of Motion application dated May 13, 2022 seeking to have the Court of Appeal certify the matter as one that raises issues of general public importance.

17. The respondent has raised a preliminary objection on that this court has no jurisdiction to entertain the application herein as it has become functus officio having fully discharged its duty in the matter.

18. Faced with a similar issue the Supreme Court of Kenya in the case ofRaila Odinga & 2 others v Independent Electoral & Boundaries Commission, Ahmed Issack Hassan, Uhuru Kenyatta & William Samoei Ruto (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling) stated: -“The first issue, however, raises concerns regarding the jurisdiction of this court; and we are thus obligated to consider the same, as it is a threshold issue, to be resolved at the earliest opportunity. It is well recognised in our law that a court of law shall down its tools in respect of a matter before it, the moment it holds that it lacks jurisdiction.”

19. The real contention on jurisdiction is based on the ground that this court has become functus officio having discharged fully its duty in the matter and the same now rests with the Court of Appeal in Appeal Number 138 of 2019.

20. The applicants submitted that the High Court has unlimited original jurisdiction in criminal and civil matters under Article 165 of theConstitution of Kenya. That the proceedings in the Court of Appeal are an extension of the proceedings herein. That the High Court has supervisory jurisdiction over all other subordinate courts and any other persons, body or authority exercising a judicial or quasi-judicial function.

21. It is my duty is to determine whether this court is functus officio or not. The Supreme Court of Kenya in Raila Odinga & 2 others v Independent Electoral & Boundaries Commission, Ahmed Issack Hassan, Uhuru Kenyatta & William Samoei Ruto (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (supra) stated: -“We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” [2005] 122 SALJ 832, has thus explicated this concept:“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”This principle has been aptly summarized further in Jersey Evening Post Limited v A1 Thani [2002] JLR 542 at 550:“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus,when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available” [Emphasis supplied].

22. The decision being appealed against emanates from the Court of Appeal and not the High Court. The applicants’ submission on jurisdiction is based on presumption that certain things are likely to happen which makes them irrelevant in this case.

23. Accordingly, it’s my view that this court has no jurisdiction to grant the orders sought as it has already become functus officio. Consequently, I will not delve into the other issues.

24. The upshot of the above is that the application herein is dismissed.

25. I make no orders as to costs.Orders accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 5TH DAY OF JULY 2023 VIA MICROSOFT TEAMSGREGORY MUTAIJUDGEIn the presence of:-Mr. Kabebe for the ApplicantMr. Mulei for the RespondentMr. Arthur Ranyundo – Court Assistant