Abdalla Mbaruk Mwaropha v Rehema Suleiman Hassan & others [2018] KEELC 2052 (KLR)
The bottom line
#The Environment and Land Court in Mombasa struck out a company's application because it never formally joined the case and the court had already finalized the judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the Interested Party was properly before the Court
It was not; it never sought leave to be enjoined, its Motion contained no joinder prayer, and the Court did not order joinder suo moto.
The suit was between the Plaintiff and Defendants, who entered a consent adopted as judgment. Order 1 Rule 10(2) allows addition of parties whose presence is necessary, but the Interested Party neither applied for joinder nor sought leave, and its Motion contained no joinder prayer. The Court did not enjoin it suo moto. Accordingly, it lacked standing to move the Court for review of the decree.
Whether the application and affidavit were duly authorized by the Interested Party company
No resolution accompanied the Application when filed, and the later-annexed resolution lacked the company seal, which is mandatory under Order 4 Rule 4.
At filing there was no resolution authorizing the deponent to swear the affidavit. A resolution dated 5th June 2017 was only annexed to a Supplementary Affidavit sworn in January 2018, well after filing. The court held the resolution should have been filed with the Application and, further, that it lacked the company seal required by Order 4 Rule 4 of the Civil Procedure Rules, rendering the application incompetent on this ground as well.
Whether the Court was functus officio
Yes. The Court adopted the consent between the Plaintiff and Defendants as judgment on 6th March 2017 and marked the matter settled; the order was extracted and judgment perfected.
Applying the general principle that litigation must come to an end, the court held that a court becomes functus officio once its decision has been rendered and acted upon or executed, leaving the aggrieved party to pursue appeal or review. Having adopted the consent as its judgment, extracted the order and marked the suit settled, the Court had no jurisdiction to revisit the matter on the Interested Party's application.
Whether the Preliminary Objections raise pure points of law under the Mukisa Biscuits test
Yes; the objections (lack of joinder, want of authority, functus officio) are points of law capable of disposing of the application.
The court applied the classic Mukisa Biscuit formulations of Sir Charles Newbold P. and Law J.A., that a preliminary objection raises a pure point of law argued on the assumption that the facts pleaded by the other side are correct. It found the objections raised here fit that description because they went to competence and jurisdiction rather than contested facts or judicial discretion.
Legal principles established
#- A party not already joined to a suit must first seek leave to be enjoined before moving the Court for orders in the suit; joinder under Order 1 Rule 10(2) was not sought or ordered here.
- A corporation's verifying affidavit/authorization must be under the company's seal; a resolution lacking the company seal, and filed late, does not cure the defect.
- Once a Court has rendered a decision that has been acted upon or executed (here, adopting a consent as judgment and marking the suit settled), it becomes functus officio and cannot revisit the matter.
Court orders
#- 1.The Preliminary Objections are upheld as merited
- 2.The Interested Party's Notice of Motion dated 14th September 2017 is struck out with costs to the Plaintiff and the Defendants
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 68 and 80 of the Civil Procedure Act; Order 45 Rule 1, Order 22 Rule 22 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdalla Mbaruk Mwaropha v Rehema Suleiman Hassan & others [2018] KEELC 2052 (KLR)", Case Analysis (2018). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2052/eng@2018-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.