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ELCDismissedNotice of Motion dated 22nd June 2020 (in pending matter)· [2021] KEELC 4191 (KLR)

David M. Ndetei v Orbit Chemical Industries Ltd; Grit Real Estate Income Group (Interested Party) [2021] KEELC 4191 (KLR)

High Court of Kenya
11 February 2021
LKL. Komingoi
563 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The plaintiff/decree holder, Prof. David M. Ndetei, brought a Notice of Motion dated 22nd June 2020 under Section 3A of the Civil Procedure Act and Order 5 rules 21, 22 and 25 of the Civil Procedure Rules. He sought leave to serve a notice of motion dated 3rd December 2019 upon an interested party, a foreign company registered in Port Louis, Mauritius, outside the court's jurisdiction, or in the alternative, leave to serve by advertisement in a leading local daily newspaper, with costs to be borne by the defendant. The application was supported by the plaintiff's affidavit sworn on 20th June 2020 and opposed through a replying affidavit sworn on 15th July 2020 by Sachen Chandaria, the defendant's Chief Executive Officer. It was canvassed by oral submissions on 13th October 2020. Justice L. Komingoi framed a single issue: whether the application was merited. The court found that the plaintiff was in effect seeking to introduce a new party at a stage when the Court of Appeal was seized of the substantive appeal and stay of execution orders were already in place. Applying the Court of Appeal's decision in Telkom Kenya Limited v John Ochanda on the doctrine of functus officio, the judge held that the court had no jurisdiction to entertain any further applications in light of the pending appeal. The application was dismissed with costs to the defendant/respondent on 11th February 2021.

Key legal issues

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01

Whether the trial court retains jurisdiction to entertain an application for leave to serve a notice of motion out of jurisdiction after a stay of execution pending appeal has been granted

Holding

The court lacks jurisdiction as it is functus officio, the Court of Appeal being seized of the substantive appeal

Reasoning

The court noted that the applicant sought to introduce a new party at a late stage of proceedings. The Court of Appeal was seized of the substantive appeal and stay of execution orders had been granted pending that appeal. Relying on the Telkom Kenya Ltd v John Ochanda decision, the judge held that functus officio is an enduring principle preventing reopening of a matter after final decision, leaving the court with no jurisdiction to entertain further applications.

p. 2
02

Whether leave should be granted to serve a foreign interested party out of jurisdiction or by advertisement

Holding

Refused; the attempt was an attempt to introduce a new party at this stage and the application was unmerited

Reasoning

The court observed that granting the prayer would amount to introducing a new party (the Mauritian interested party) into proceedings whose substantive appeal was already before the Court of Appeal. Given the functus officio doctrine, the court could not entertain the application, and the alternative prayer for substituted service by advertisement fell with it.

p. 2

Legal principles established

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  • Functus officio prevents the reopening of a matter before a court that rendered the final decision, and once an appeal is pending with stay orders granted, the trial court has no jurisdiction to entertain further applications

Court orders

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  1. 1.The Notice of Motion dated 22nd June 2020 is dismissed with costs to the defendant/respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 5 rules 21, 22 and 25

Cases cited (1)

  • Telkom Kenya Limited vs John Ochanda suing in his own behalf and 996 others
    [2014] eKLR
On appeal from
Court of Appeal
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 5 rules 21, 22 and 25 of the Civil Procedure Rules; the court held it was functus officio with the appeal pending in the Court of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David M. Ndetei v Orbit Chemical Industries Ltd; Grit Real Estate Income Group (Interested Party) [2021] KEELC 4191 (KLR)", Case Analysis (2021). Notice of Motion dated 22nd June 2020 (in pending matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4191/eng@2021-02-11

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