Gecy Systems Limited v Tom Adago Opiyo & 2 others; Official Receiver & Liquidator of Credit Finance Limited & 2 others (Interested Parties) [2019] KEELC 1161 (KLR)
The bottom line
#A company that stayed out of a land court case for years could not use a review application to undo the judgment after the fact.
What this practically means
#Executive summary
#Key legal issues
#Whether a non-party's application for review is properly before the court
The application was not properly before the court because the applicant never sought leave to be enjoined and judgment had already been delivered, leaving no pending proceedings.
The court noted that under Order 1 rule 10(2) joinder of a necessary party is possible at any stage of proceedings, but there were no pending proceedings after judgment was delivered on 24th October 2014. The applicant had not sought leave to come on record, and allowing an alleged interested party to claim substantive remedies after judgment would amount to allowing a new cause of action.
Whether the court was functus officio and thus barred from reviewing its own judgment
The court held it had become functus officio having delivered final judgment, and the application did not fall within the recognised exceptions for correcting slip errors.
Relying on Telkom Kenya Limited v John Ochanda and Dhanji Jadra Ramji, the court reasoned that once it has pronounced itself, it cannot alter its decision except to correct clerical mistakes or errors in expression of its intention. The applicant sought substantive prayers and did not allege any clerical mistake, so the doctrine of functus officio applied.
Whether the applicant was entitled to stay of execution under Order 42 rule 6
The applicant failed to satisfy the requirements for grant of stay of execution under Order 42 rule 6 of the Civil Procedure Rules.
The court accepted the plaintiff/respondent's submission that the applicant, being a stranger to the suit who had neither appealed nor applied for judicial review, had no valid legal or judicial basis to invoke the stay provisions of Order 42 rule 6.
Legal principles established
#- A stranger to proceedings who did not seek leave to be enjoined cannot bring an application for review after judgment has been delivered, as no proceedings are pending
- A court becomes functus officio upon pronouncing final judgment and can thereafter only correct clerical mistakes or errors in expression of intention
Court orders
#- 1.The notice of motion dated 25th March 2015 is dismissed
- 2.Costs awarded to the plaintiff/respondent
- Jurisdiction invoked
- Sections 3A and 80 of the Civil Procedure Act, Article 159(2)(d) of the Constitution and Order 45(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gecy Systems Limited v Tom Adago Opiyo & 2 others; Official Receiver & Liquidator of Credit Finance Limited & 2 others (Interested Parties) [2019] KEELC 1161 (KLR)", Case Analysis (2019). Notice of Motion dated 25th March 2015 (suit arising from HCCC No. 3462 of 1995-related proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1161/eng@2019-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.