Gabriella Susat v Cosimo Rosafio & another [2021] KEELC 1551 (KLR)
The bottom line
#The court refused to enforce payment of service charges because a consent order had already settled the issue, and courts cannot reopen such orders.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application is res judicata because the issue of liability for service charge was conclusively determined by the consent order between the same parties
Section 7 of the Civil Procedure Act requires all elements to be satisfied conjunctively. The consent order, adopted by the court, determined that the plaintiff would pay service charge. The plaintiff had earlier sought the same payment order in a motion dated 22nd May 2018 and it was not granted, which under Explanatory Note 5 to Section 7 is deemed refused. The same issue between the same parties was therefore finally determined by a competent court.
Functus officio
The court is functus officio as regards the application because the consent order settling liability for service charge has neither been set aside nor reviewed
Applying the Supreme Court's exposition of the functus officio doctrine in Raila Odinga, once a decision has been given it is final and conclusive and cannot be varied by the decision-maker. The consent order settled the case, and no review, appeal, or separate action had been brought to set it aside.
Jurisdiction to enforce a non-existent decree
There being no judgment, decree or order requiring the 1st defendant to pay the sum claimed, the court cannot enforce or execute a non-existent decree
The preliminary objection raised a pure point of law: no decree existed obliging the 1st defendant to pay Kshs 501,627.45. The consent order placed the obligation to pay service charge on the plaintiff. A party aggrieved by a consent order must set it aside or appeal; the court cannot vary it of its own motion.
Legal principles established
#- Once a consent is adopted by the court it becomes a consent judgment or order with contractual effect which determines and settles the issues in dispute
- A consent order may only be set aside or varied by a separate action, an application for review, or an appeal, with the burden on the party seeking to set it aside
Court orders
#- 1.The preliminary objection dated with respect to the Notice of Motion dated 23rd March 2021 is upheld as prayed
- 2.The plaintiff's application dated 23rd March 2021 is dismissed with costs to the 1st defendant
- Jurisdiction invoked
- Not expressly stated; Environment and Land Court exercising original civil jurisdiction over the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gabriella Susat v Cosimo Rosafio & another [2021] KEELC 1551 (KLR)", Case Analysis (2021). Civil Suit No 28 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1551/eng@2021-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.