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ELCOtherNot stated in the extract provided· [2018] KEELC 2052 (KLR)

Abdalla Mbaruk Mwaropha v Rehema Suleiman Hassan & others [2018] KEELC 2052 (KLR)

Environment and Land Court of Kenya
23 July 2018
1,765 words in judgment
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (C. Yano, J) determined two preliminary objections — one by the Plaintiff and one by the Defendants — against an application by an Interested Party seeking, under Sections 1A, 1B, 3A, 68 and 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, a review of the order and decree of 6th March 2017 by which the Court adopted a consent between the Plaintiff and Defendants as judgment and marked the suit settled. The Interested Party, through Raymond David Victor Njindo Matiba, also sought punitive orders against the Plaintiffs and Defendants for abuse of process. Both the Plaintiff and Defendants objected that the Interested Party was never enjoined to the suit, that the application and supporting affidavit lacked company authority (the resolution lacking the mandatory company seal), and that the Court was functus officio. Applying the Mukisa Biscuits test, the court held the objections raised pure points of law. It found the Interested Party was not properly before the Court having never sought leave to be enjoined; that the application was incompetent for want of a timely, sealed company resolution; and that, having adopted the consent as judgment and perfected it, the Court was functus officio and could not revisit the matter. The Preliminary Objections were upheld, the Notice of Motion dated 14th September 2017 was struck out with costs to the Plaintiff and the Defendants.

Key legal issues

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01

Whether the Interested Party was properly before the Court

Holding

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.

Reasoning

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.

p. 2
02

Whether the application and affidavit were duly authorized by the Interested Party company

Holding

No resolution accompanied the Application when filed, and the later-annexed resolution lacked the company seal, which is mandatory under Order 4 Rule 4.

Reasoning

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.

p. 3
03

Whether the Court was functus officio

Holding

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.

Reasoning

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.

p. 3
04

Whether the Preliminary Objections raise pure points of law under the Mukisa Biscuits test

Holding

Yes; the objections (lack of joinder, want of authority, functus officio) are points of law capable of disposing of the application.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Preliminary Objections are upheld as merited
  2. 2.The Interested Party's Notice of Motion dated 14th September 2017 is struck out with costs to the Plaintiff and the Defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 68, 80
  • Civil Procedure RulesOrder 45 Rule 1; Order 22 Rule 22; Order 51 Rule 1; Order 1 Rule 10(2); Order 4 Rule 1(4); Order 4 Rule 4
  • Companies ActNo. 17 of 2015

Cases cited (4)

  • Zephir Holdings Limited –vs- Mimosa Plantation Limited
  • Telkom Kenya Limited –v- John Ochanda (2014) eKLR
    (2014) eKLR
  • Kenya Commercial Bank -v- Come-cons Africa Limited and Another (2013) eKLR
    (2013) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd –v- West End Distributors Limited
    (1969) EA 697
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.