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ELCOtherNot stated in the judgment (Judicial Review proceedings, Mombasa)· [2021] KEELC 3063 (KLR)

Spire Bank Limited v Land Registrar; Abdulgader Shariff Saleh & another (Interested Parties) [2021] KEELC 3063 (KLR)

High Court of Kenya
26 May 2021
505 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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Once a Kenyan court strikes out your application, it is finished — your only option is to appeal, not to keep pushing the same application.

What this practically means

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Executive summary

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Spire Bank Limited, having obtained leave on 8th May 2017, filed a notice of motion dated 11th May 2017 seeking judicial review orders of certiorari, mandamus and prohibition. The respondent filed grounds of opposition and the interested parties filed a replying affidavit and a preliminary objection. The court directed that the preliminary objection be heard first, and on 30th January 2018 it upheld the objection and struck out the notice of motion with costs. The applicant filed a notice of appeal to the Court of Appeal on 12th February 2018. Despite this, on 23rd October 2020 the applicant's advocates fixed the same application for hearing, and on the hearing date counsel for the applicant purported to prosecute it. Justice C.K. Yano examined the record and found that no application remained pending, the motion having been conclusively determined by the ruling of 30th January 2018; counsel for the applicant had even been present at that ruling and obtained copies of the proceedings. The court held that it was being asked to rule on a matter already decided and declined to do so, 'downing its tools.' No substantive review orders were made; the notice of appeal indicated the applicant's remedy lay in the Court of Appeal. No costs order was made in this ruling and no authorities or statutes were cited.

Key legal issues

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01

Whether the court could entertain the purposed prosecution of the notice of motion dated 11th May 2017

Holding

It could not; the application had been struck out on 30th January 2018 upon upholding of the preliminary objection and no live matter remained

Reasoning

The record showed the motion was struck out with costs after the preliminary objection was upheld. The applicant only filed a notice of appeal. When counsel later purported to fix and prosecute the same application, there was nothing before the court; adjudicating it would amount to deciding a matter already decided.

p. 2

Legal principles established

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  • A court cannot rule on an application that has already been determined; once an application is struck out, it ceases to be pending and the court becomes functus officio as to it

Court orders

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  1. 1.The court declined to make any ruling as there was no pending application before it
On appeal from
null
null
Jurisdiction invoked
Judicial review jurisdiction under leave granted by the court on 8th May 2017 (orders of certiorari, mandamus and prohibition); inherent power to decline to rule on a matter already determined

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, "Spire Bank Limited v Land Registrar; Abdulgader Shariff Saleh & another (Interested Parties) [2021] KEELC 3063 (KLR)", Case Analysis (2021). Not stated in the judgment (Judicial Review proceedings, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3063/eng@2021-05-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.