Nzaku and Nzaku Advoctaes v Chimako Homes Limited
The bottom line
#The Environment and Land Court refused to undo an earlier ruling against a law firm that ignored court directions and gave conflicting explanations.
What this practically means
#Executive summary
#Key legal issues
#Whether the court is functus officio
No; the doctrine does not bar entertaining an application, only revisiting a decided matter on merit after final judgment and decree.
The court distinguished the ruling of 9th September 2016 (on who carried out the sale transaction) and the ruling of 11th February 2021 (on cross-examination on means), neither of which was a final judgment with a decree on the application itself. Section 99 of the Civil Procedure Act also permits correction of clerical errors. What was before the court was an application, not a merit re-litigation of the taxed certificate of costs.
Whether the ruling of 11th February 2021 should be set aside
No; the applicant was not candid, blamed its advocate inconsistently, ignored court directions and summons, and the respondent would be prejudiced.
Applying Patel v E.A Cargo Handling and Mbogo v Shah, the discretion to set aside ex parte orders is wide but not designed to assist a party who deliberately obstructs or delays justice. The applicant's director and advocate gave conflicting accounts of non-filing of the replying affidavit; the director ignored summons and directions including those of Komingoi J; and the respondent held an unexecuted decree.
Legal principles established
#- Functus officio bars revisiting a matter on merit after final judgment and decree, but does not bar the court from entertaining an application.
- A party who with impunity fails to adhere to court orders and directions should not benefit from the court's discretion.
Court orders
#- 1.The Notice of Motion dated 5th November 2021 is dismissed
- 2.Costs of the application to the Respondent
- Jurisdiction invoked
- Inherent discretion of the Environment and Land Court to set aside ex parte orders; Section 99 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzaku and Nzaku Advoctaes v Chimako Homes Limited", Case Analysis (2023). Environment and Land Miscellaneous Application 340 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21190/eng@2023-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.