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ELCDismissedNot stated in judgment· [2023] KEELC 696 (KLR)

Kitundu v Sheikh (Civil Suit E327 of 2022) [2023] KEELC 696 (KLR)

Environment and Land Court
9 February 2023
OMOguttu Mboya
3,216 words in judgment
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The bottom line

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A Kenyan court cannot reinstate your own case it dismissed after hearing both sides—your only option is appealing to the Court of Appeal.

What this practically means

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Executive summary

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The Plaintiff/Applicant filed a Notice of Motion dated January 17, 2023 seeking a stay of taxation of a Bill of Costs dated November 21, 2022 and reinstatement of her suit, which had been dismissed for want of prosecution on November 14, 2022 under Order 17 Rule 4 of the Civil Procedure Rules, 2010. The dismissal followed the court's refusal of an adjournment sought because the Plaintiff was unavailable to testify, after which her counsel stated there was no evidence to tender. The Defendant/Respondent opposed the application through grounds of opposition, contending the court lacked jurisdiction, was functus officio, and that the supporting affidavit, notarized in Ohio, USA, lacked the certification required under Section 88 of the Evidence Act. The Applicant argued the dismissal rested on a technicality curable under Article 159(2)(d) of the Constitution. The court framed two issues: whether it had jurisdiction to entertain the application, and whether it was functus officio. Relying on Njue Ngai v Ephantus Njiru Ngai, Homeboyz Entertainment Limited and China Bente Industry (K) Ltd, the court held that a dismissal for want of prosecution made inter-partes, after hearing submissions, is a final judgment in favour of the defendant, appealable only to the Court of Appeal and not capable of being set aside by the same court. It further held, relying on Telkom Kenya Limited v John Ochanda, that having rendered a determinative decision it had exhausted its mandate and become functus officio. The application, deemed misconceived and an abuse of due process, was dismissed with costs to the Defendant on February 9, 2023.

Key legal issues

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01

Jurisdiction to reinstate a suit dismissed for want of prosecution inter-partes

Holding

The court lacks jurisdiction to reinstate a suit dismissed under Order 17 Rule 4 after hearing both parties; such dismissal is a final, inter-partes judgment appealable to the Court of Appeal.

Reasoning

The suit was dismissed after counsel for the plaintiff stated she had no evidence to tender, following dismissal of an adjournment application heard inter-partes. Relying on Njue Ngai v Ephantus Njiru Ngai, Homeboyz Entertainment and China Bente Industry, the court held such a dismissal is a judgment for the defendant, not a default decision, and can only be appealed, not set aside by the same court.

p. 6
02

Functus officio

Holding

Having rendered a determinative decision after hearing submissions, the court exhausted its mandate under the Civil Procedure Act and Rules and is functus officio.

Reasoning

The court reasoned that the doctrine of finality, as articulated in Telkom Kenya Limited v John Ochanda, bars a decision-maker from exercising adjudicative powers twice over the same matter. Reinstating the dismissed suit would amount to the court sitting on appeal over its own decision, which the doctrine forbids.

p. 6

Legal principles established

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  • A dismissal of a suit for want of prosecution under Order 17 Rule 4 made after hearing the parties constitutes a judgment in favour of the defendant and is appealable, not settable aside by the same court.
  • A court that has rendered a final judgment becomes functus officio and cannot revisit the matter.

Court orders

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  1. 1.The Application dated January 17, 2023 is dismissed
  2. 2.Costs of the application to the Defendant/Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Rules, 2010Order 17 Rule 4; Order 9 Rule 2; Order 12 Rule 7
  • Civil Procedure ActNot specified
  • Evidence Act, Chapter 80 Laws of KenyaSection 88

Cases cited (5)

  • Njue Ngai versus Ephantus Njiru Ngai & Another
    (2016) eKLR
  • Peter Ngome vs Plantex Company Limited
    [1983] eKLR
  • Homeboyz Entertainment Limited versus Secretary National Building Inspectorate & 2 others
    [2022] eKLR
  • China Bente Industry (K) Ltd versus Seline J Comen & another
    [2022] eKLR
  • Telkom Kenya Limited versus John Ochanda (Suing On His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited)
    [2014] eKLR
Jurisdiction invoked
Environment and Land Court Act; Civil Procedure Act and Rules (Order 17 Rule 4); Article 159(2)(d) of the Constitution 2010 invoked by the Applicant

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, "Kitundu v Sheikh (Civil Suit E327 of 2022) [2023] KEELC 696 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/696/eng@2023-02-09

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