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ELCDismissedCivil Suit No 28 of 2014· [2021] KEELC 1551 (KLR)

Gabriella Susat v Cosimo Rosafio & another [2021] KEELC 1551 (KLR)

Environment and Land Court
13 October 2021
2,650 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M. A. Odeny, J) disposed of a Notice of Motion dated 23rd March 2021 by the plaintiff, Gabriela Susat, seeking an order that the 1st defendant, Casimo Rosafiq, pay Kshs 501,627.45 as accrued maintenance and service charges in respect of 10 shares in Bay Ocean Ltd representing a ground floor apartment. Before the hearing, the 1st defendant raised a preliminary objection on nine grounds: that there was no judgment, decree or order requiring him to pay the sum, that the application sought to vary a consent order of 25th September 2017, that the court was functus officio, and that the application was res judicata since an earlier motion dated 22nd May 2018 had sought the same payment order and it was not granted. The court framed three issues: res judicata, functus officio, and jurisdiction to enforce a non-existent decree. Applying section 7 of the Civil Procedure Act as construed by the Supreme Court in the Maina Kiai case, and the functus officio doctrine from Raila Odinga, the court held that the consent order - which required the plaintiff to pay service charge and was adopted as a court order - conclusively determined liability for service charge between the same parties. The consent order had neither been set aside nor reviewed, so the court was functus officio and the application res judicata. The preliminary objection was upheld and the plaintiff's application dismissed with costs to the 1st defendant.

Key legal issues

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01

Res judicata

Holding

The application is res judicata because the issue of liability for service charge was conclusively determined by the consent order between the same parties

Reasoning

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.

p. 4
02

Functus officio

Holding

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

Reasoning

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.

p. 4
03

Jurisdiction to enforce a non-existent decree

Holding

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

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 1.The preliminary objection dated with respect to the Notice of Motion dated 23rd March 2021 is upheld as prayed
  2. 2.The plaintiff's application dated 23rd March 2021 is dismissed with costs to the 1st defendant

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 7 (including Explanatory Note 5)
  • Law Society Conditions of Sale (1989)Condition 4(2)(d)
  • Civil Procedure RulesOrder 21(1)

Cases cited (8)

  • Bob Collymore & Another v Cyprian Nyakundi
    [2016] eKLR
  • Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR 828
  • Peterson Ndung’u, Stephen Gichanga Gituro, N. Ojwang, Peter Kariuki, Joseph M. Kyavi & James Kimani v Kenya Power & Lighting Company Ltd
    [2018] eKLR
  • Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 others
    (supra)
  • Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 others
    [2013] eKLR
  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR
  • Flora N. Wasike v Destimo Wamboko
    [1990] eKLR
  • Suleiman Said Shabhal vs Independent Electoral & Boundaries Commission & 3 Others
    [2014] eKLR
Jurisdiction invoked
Not expressly stated; Environment and Land Court exercising original civil jurisdiction over the suit

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, "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.