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ELCDismissedEnvironment and Land Miscellaneous Application 340 of 2014· [2023] KEELC 21190 (KLR)

Nzaku and Nzaku Advoctaes v Chimako Homes Limited

Environment and Land Court
31 October 2023
2,016 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicant, a firm of advocates, moved the Environment and Land Court by Notice of Motion dated 5th November 2021 seeking to vary, review or set aside the court's ruling of 11th February 2021, which had ordered the applicant's directors to present themselves for cross-examination on their means, and for leave to file a replying affidavit to the respondent's application. The applicant blamed its former advocates, Mungala & Co Advocates, for failing to respond to the earlier application, citing the illness and death of the director who gave instructions. The respondent opposed, arguing the court was functus officio regarding the certificate of costs and decree, that the applicant lacked interest, and that the application was a delaying tactic. The court framed two issues: functus officio and whether to set aside the ruling. On the first, it held the doctrine does not bar entertaining an application, only revisiting a decided matter on merit after final judgment and decree. On the second, applying Patel v E.A Cargo Handling Services Ltd and Mbogo v Shah, the court found the applicant not candid - the director and the advocate gave conflicting accounts - and noted the applicant ignored summons and directions, including those of Komingoi J, and made no effort to regularise representation, while the respondent held an unexecuted decree. The application was dismissed with costs.

Key legal issues

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01

Whether the court is functus officio

Holding

No; the doctrine does not bar entertaining an application, only revisiting a decided matter on merit after final judgment and decree.

Reasoning

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.

p. 3
02

Whether the ruling of 11th February 2021 should be set aside

Holding

No; the applicant was not candid, blamed its advocate inconsistently, ignored court directions and summons, and the respondent would be prejudiced.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 5th November 2021 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 99

Cases cited (5)

  • Lee G. Muthoga -vs- Habib Zurich Finance (k) Ltd & Another
    Civil Application No. Nairobi 236 of 2009

    A litigant should not suffer because of his advocates' oversight.

  • Telkom Kenya limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited)
    [2014] eKLR

    Functus officio prevents re-opening of a matter before a court that rendered the final decision.

  • Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others
    [2013] eKLR

    Origins and meaning of the functus officio doctrine, citing Pretorius' article.

  • Patel v E.A Cargo Handling Services Ltd
    (1974) EA 75

    Wide discretion to set aside ex parte judgment, to be exercised to do justice.

  • Mbogo v Shah
    [1968] EA 93

    Discretion to set aside ex parte judgment not designed to assist a person who deliberately obstructs or delays justice.

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

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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, "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.