Shakila Begum Ali (as personal representative of the Estate of the Late Mehboob Mohamed Abdul Gafoor Mohamed Mulah also known as Mehboob Mohamed Abdulgafoor and Mehboob Mullah) v Vescon Properties Limited & another [2019] KEELC 434 (KLR)
The bottom line
#A Kenyan court ruled it cannot revive a case it already dismissed for delay, so the party must appeal or seek review instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the court had jurisdiction to reinstate a suit dismissed for want of prosecution under Order 17 Rule 2, or whether it was functus officio
The court held that the dismissal of 1st November 2018 was a decision made in accordance with law after the plaintiff was heard; the court was therefore functus officio and had no jurisdiction to entertain the reinstatement application, the remedy being review or appeal.
The court traced the functus officio doctrine from Raila Odinga (citing Pretorius) and Jersey Evening Post Ltd v Al Thani, and from the Supreme Court's decision in Menginya Salim Murgani v Kenya Revenue Authority. A suit ends when a court renders a decision and that decision is effected. The dismissal of 1st November 2018 followed a duly served notice to show cause at which the applicant's advocate appeared and was heard but the reasons given were found insufficient. The dismissal was therefore a lawful final decision; the judge could not sit on appeal over a decision of a court of concurrent jurisdiction.
Legal principles established
#- Once a court has delivered a decision and it has been effected, the court becomes functus officio and an aggrieved party must pursue appeal or review; a court cannot sit on appeal over its own decision or that of a court of concurrent jurisdiction
Court orders
#- 1.The notice of motion dated 22nd November 2018 is dismissed with costs to the defendants
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Articles 49 and 159(2) of the Constitution, Order 51 Rule 15 of the Civil Procedure Rules; the court found it had no jurisdiction as it was functus officio
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shakila Begum Ali (as personal representative of the Estate of the Late Mehboob Mohamed Abdul Gafoor Mohamed Mulah also known as Mehboob Mohamed Abdulgafoor and Mehboob Mullah) v Vescon Properties Limited & another [2019] KEELC 434 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/434/eng@2019-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.