Prabhudas Dhanji & 2 others v Mansukhlal Dhanji [2022] KEELC 762 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Functus officio
The court is not functus officio because the judgment has not been perfected or executed and further resort to the court is contemplated by its terms
Relying on Raila Odinga (SC), Telkom Kenya (CA) and Bellevue Development, the court held that functus officio should not be rigidly applied where the relief sought is incidental to or a natural consequence of the final decision, such as execution or supplemental jurisdiction. The decree here contemplated further resort to the court for eviction.
Change of advocates after judgment
The incoming firm was properly on record, a consent between outgoing and incoming advocates having been filed under Order 9 Rule 9(b)
Order 9 Rule 9 permits change of advocate post-judgment either by court application or by consent between outgoing and incoming advocates. A consent dated 1st September 2021 between LJA Associates and Mwaniki Gachoka & Co Advocates was on record and undisputed, satisfying the rule.
Adoption of consent as court order
The 27th June 2019 consent remained a mere agreement and could not be adopted as it varied the judgment without a review application
Per Geoffrey M. Asanyo (SC), a consent becomes a court order only upon formal adoption. Here the Applicants' counsel disowned the consent, so there was no consensus ad idem, and its terms (replacing Knight Frank with Dunhill, escrow account instead of court deposit) varied the decree, a course requiring review under Section 80 CPA and Order 45 Rule 1.
Temporary injunction
Injunction refused as there was no pending suit and the order would effectively stay the court's own judgment without an appeal
Applying Giella v Cassman Brown and Nguruman, a prima facie case presupposes a pending suit; the suit had been concluded by the 26th November 2018 judgment. Further, the injunction as framed would have been spent and would amount to staying implementation of the judgment, impermissible absent an appeal.
Legal principles established
#- A consent between parties becomes an order of the court only once formally adopted by the court
- A court that has delivered final judgment is not functus officio over matters incidental to or consequential on that judgment, including execution
- Grounds of opposition address issues of law only and cannot controvert sworn affidavit evidence
- Parties cannot vary the terms of a decree by consent without moving the court under Section 80 CPA and Order 45 Rule 1 for review
Court orders
#- 1.Leave granted for the firm of M/S Mwaniki Gachoka & Company Advocates to come on record for the Respondent/Applicant in place of LJA Associates LLP
- 2.Prayer to adopt the consent dated 27th June 2019 as an order of the court declined
- 3.Prayer for temporary injunction declined
- 4.The application dated 28th September 2021 dismissed with no order as to costs
- Jurisdiction invoked
- Inherent and supplemental jurisdiction of the court over matters incidental to execution of its decree; Order 9 Rule 9 and Order 40 of the Civil Procedure Rules, 2010; Section 80 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Onchwari v National Authority for the Campaign Against Alcohol and Drugs (Employment and Labour Relations Cause 2036 of 2017) [2025] KEELRC 89 (KLR)[2025] KEELRC 89 (KLR)22 Jan 2025distinguished
Cite this brief
#Cite this brief
Caselaw, "Prabhudas Dhanji & 2 others v Mansukhlal Dhanji [2022] KEELC 762 (KLR)", Case Analysis (2022). Notice of Motion dated 28th September 2021 (in the suit by Originating Summons over L.R 209/3350 and L.R 209/2753/2). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/762/eng@2022-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.