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ELCDismissedConstitutional Petition 10 of 2014· [2023] KEELC 17695 (KLR)

Omar Abdalla Jelani & 5 others v Attorney General & 4 others

Environment and Land Court at Malindi
31 May 2023
2,967 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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This ruling of the Environment and Land Court at Malindi (E. K. Makori, J) determined an application dated 8th November 2022 by Mohamed Sizi Famau seeking review of the court's ruling of 8th October 2019 (Olola J) which had marked the constitutional petition as compromised and fully settled subject to payment of costs, pursuant to a Consent of 8th December 2014 under which the Petitioners' Advocate was to join all 146 project-affected persons to the suit. The Applicant, who was never joined, sought an order that the matter be marked as compromised with payment of Kshs 12,469,038.50 to his advocates. The court framed four issues: proper joinder, functus officio, the threshold for review, and costs. It held that the Applicant was a stranger to the proceedings who never sought joinder, and that a party can only be joined during the pendency of a suit, not after conclusion. Applying the Supreme Court's exposition of functus officio in the Raila Odinga petition and the Court of Appeal's decision in Telkom Kenya v John Ochanda, the court held it was functus officio, the Applicant having demonstrated neither a slip in the ruling nor an error in expressing the court's intention. On review, applying Mativo J's parameters in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya, the court found no error apparent on the face of the record and no new evidence warranting review; the material presented was suited to a fresh suit. The application was dismissed with costs.

Key legal issues

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01

Joinder of the Applicant after conclusion of the suit

Holding

The Applicant was a stranger to the proceedings, never applied to be joined, and cannot be joined in a matter already concluded

Reasoning

The Petition was a representative suit by six named Petitioners. The Consent Order of 8th December 2014 required the Petitioners' Advocate to join project-affected persons within 14 days, but the Applicant was never joined and never applied to be joined. Joining him now, after the matter was concluded in 2015, would convolute the issues and give a second bite at a determined matter.

p. 4
02

Functus officio

Holding

The court became functus officio upon the ruling of 8th October 2019 marking the matter as compromised; the Applicant did not bring himself within the slip rule exceptions

Reasoning

The ruling of 8th October 2019 conclusively determined the dispute subject to taxation of costs. The Applicant failed to demonstrate a slip in drawing up the ruling or an error in expressing the court's manifest intention. Reopening the matter would require new material to pass through cross-examination and trial procedure, which is impermissible at this stage.

p. 5
03

Threshold for review under Section 80 CPA and Order 45 Rule 1

Holding

No error apparent on the face of the record, no new evidence that could not with due diligence have been produced earlier, and review cannot be used to reopen a concluded matter

Reasoning

Applying the parameters set by Mativo J in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya, the court held that review is confined to material available at the initial decision, mere discovery of new evidence is insufficient, and the material presented was suited to a fresh suit rather than review. Granting the orders sought would change the substratum of the litigation and require the suit to start de novo.

p. 6

Legal principles established

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  • A party can only be joined to a suit during its pendency, not after it has been concluded
  • Once a court has rendered a final decision it becomes functus officio and cannot review or alter its decision, save for the slip rule exceptions
  • Review is not a vehicle for reopening a concluded matter; the grounds in Order 45 Rule 1 are exhaustive

Court orders

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  1. 1.The application dated 8th November 2022 is dismissed
  2. 2.The Applicant to pay costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 27, 28, 30, 31, 32, 35, 40, 47, 60, 62; Chapter Four; Sixth Schedule Part 5 Rule 19
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1; Order 1 Rule 10(2); Order 1 Rule 3
  • Enforcement of Fundamental Rights and Freedoms of Individuals (Supervisory Jurisdiction) Practice and Procedure Rules 2006
  • Universal Declaration of Human Rights (1948)
  • African Charter on Human Rights

Cases cited (12)

  • Telkom Kenya Limited v John Ochanda (Suing on his behalf and behalf of 996 Former Employees of Telkom Kenya Limited)
    [2014] eKLR

    Functus officio doctrine and slip rule exceptions

  • Pancras T. Swai v Kenya Breweries Limited
    [2014] eKLR

    Court's wide discretion to order review (cited by Applicant)

  • Sarder Mohamed v. Charan Singh Nand Sing and Another
    [1959] EA 793

    Discretion to order review (cited by Applicant)

  • Shanzu Investments Limited v. Commissioner for Lands
    Civil Appeal No. 100 of 1993

    Review discretion (cited by Applicant)

  • Wangechi Kimata & Another v Charan Singh
    C.A. No. 80 of 1985

    Review discretion (cited by Applicant)

  • Raila Odinga & 2 others v Independent Electoral & Boundaries Commission, Ahmed Issack Hassan, Uhuru Kenyatta & William Samoei Ruto
    (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ)

    Functus officio doctrine and principle of finality

  • Mayfair Holdings Ltd v Municipal Council of Kisumu; Pauline Mauwa Akwacha (Interested Party/Applicant)
    [2020] eKLR

    Joinder cannot be made after a suit is concluded

  • Lilian Wairimu Ngatho & another v Moki Savings Co-Operative Society Limited & another
    [2014] eKLR

    Joinder under Order 1 Rule 10(2) only during pendency of suit

  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR

    Parameters for grant of review; review is not for reopening a case

  • Chandler vs Alberta Association Of Architects
    [1989] 2 S.C.R. 848

    Origins of the functus officio doctrine

  • In re St. Nazaire Co.
    (1879), 12 Ch. D. 88

    General rule that a final decision cannot be reopened

  • Jersey Evening Post Limited v. A1 Thani
    [2002] JLR 542

    A court is functus when it has performed all its duties in a particular case

Jurisdiction invoked
Inherent review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, invoked by application dated 8th November 2022

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, "Omar Abdalla Jelani & 5 others v Attorney General & 4 others", Case Analysis (2023). Constitutional Petition 10 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17695/eng@2023-05-31

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