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ELCDismissed· [2024] KEELC 868 (KLR)

Shah & another (Suing as the Legal Representatives of the Estate of the Late Vinodrai Hirji Shah) v Stima Investment Co-operative Limited & another (Environment and Land Case Civil Suit 605 of 2016) [2024] KEELC 868 (KLR)

Environment and Land Court
15 February 2024
3,702 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan land court refused to set aside its judgment because a settlement consent was filed but never formally adopted before judgment was delivered.

What this practically means

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Executive summary

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The 1st Defendant, by a Notice of Motion dated 22nd July 2022, sought to set aside the judgment delivered on 5th May 2022 - which ordered demolition of an encroaching extension, rebuilding of the Plaintiffs' wall and payment of Kshs. 500,000/- in trespass damages - and to have a consent filed on 4th May 2022 (agreeing a sale of the suit property at Kshs. 150,000,000) adopted as the judgment of the court, plus an order for specific performance through execution of documents by the Deputy Registrar. The 1st Defendant attributed the failure to present the consent before judgment to mis-diarying of the judgment date by its advocate. The Plaintiff opposed, asserting unclean hands and that the court was functus officio. The court framed two issues: its jurisdiction to deal with the application after judgment, and whether the application was merited. Relying on the Supreme Court's endorsement of the functus officio doctrine in Raila Odinga, and on the exceptions recognised in Silvanus Kizito and Leisure Lodge, the court held that a judgment entered on the merits after both parties were heard cannot be set aside under Orders 10 and 12 of the Civil Procedure Rules, and that review under Section 80 of the Civil Procedure Act and Order 45 was unavailable because the consent and negotiations were not new matter, no error apparent on the record was shown, and no sufficient reason was advanced. Drawing on Edward Acholla, the court held that a consent not adopted before judgment has no force of law, and that adopting it post-judgment would amount to reopening the suit. The application was dismissed with costs to the Plaintiffs on 15th February 2024.

Key legal issues

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01

Whether the court retains jurisdiction to entertain an application after delivering final judgment on the merits

Holding

The court is functus officio after delivering a judgment on the merits; the only avenues for setting aside are Orders 10 and 12 CPR (non-appearance/default cases) and review under Section 80 CPA and Order 45, none of which were available to the 1st Defendant

Reasoning

The court traced the functus officio doctrine through the Supreme Court's adoption of Pretorius' article, noting finality of decisions. It recognised exceptions for incidental proceedings (stay, review, execution) per Silvanus Kizito and Leisure Lodge. Setting aside under Order 10 Rule 11 and Order 12 Rule 7 applies only to judgments entered under those Orders, not merits judgments. Review required new matter, error apparent, or sufficient reason, none shown.

02

Whether the consent filed on 4th May 2022, a day before judgment, could be adopted as the judgment of the court

Holding

No - the consent was never adopted before judgment was delivered, after which the court became functus officio; the unadopted consent has no force of law

Reasoning

The court found parties could have filed a formal application to arrest the judgment before delivery but did not. Relying on Edward Acholla vs Sogea Satom, an unadopted consent never becomes a consent judgment or order with contractual effect. Adopting it after judgment would amount to reopening the suit and making meritorious determinations on issues already determined, which the court lacked jurisdiction to do.

p. 7
03

Whether the judgment could be reviewed on the ground of the consent and negotiations

Holding

No - the consent and negotiations were not new and important matter or evidence discovered after due diligence, no error apparent on the face of the record was claimed, and no sufficient reason was advanced

Reasoning

Under Order 45 Rule 1(b), review requires discovery of new and important matter or evidence not within the applicant's knowledge at the time of the decree, or a mistake or error apparent on the face of the record, or other sufficient reason. The negotiations and consent predated judgment and were within the 1st Defendant's knowledge, so the threshold for review was not met.

p. 7

Legal principles established

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  • Once a trial court has delivered its judgment on the merits, it becomes functus officio and cannot reopen or re-examine the decision, save for limited exceptions such as stay, review, execution and incidental proceedings that do not amount to retrying the cause.
  • A consent that is not adopted by the court does not become a judgment or order of the court and has no force of law.
  • Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules do not empower a court to set aside a judgment entered on the merits after both parties were heard.

Court orders

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  1. 1.The 1st Defendant's Application dated 22nd July, 2022 is dismissed with costs to the Plaintiffs.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 10 Rule 11
  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 45 Rule 1(b)
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 94

Cases cited (5)

  • Raila Odinga & 2 Others vs Independent Electoral & Boundaries Commission & 3 Others
    [2013] eKLR
  • Silvanus Kizito vs Edith Nkirote Mwiti
    [2021] eKLR
  • Leisure Lodge Ltd vs Japhet Asige and another
    (2018) eKLR
  • Mureithi Charles & another vs Jacob Atina Nyagesuka
    [2022] eKLR
  • Edward Acholla vs Sogea Satom Kenya Branch & 2 Others
    2014 eKLR
Jurisdiction invoked
Sections 80 and 94 of the Civil Procedure Act and Orders 10, 12 and 45 of the Civil Procedure Rules, 2010; functus officio doctrine

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, "Shah & another (Suing as the Legal Representatives of the Estate of the Late Vinodrai Hirji Shah) v Stima Investment Co-operative Limited & another (Environment and Land Case Civil Suit 605 of 2016) [2024] KEELC 868 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/868/eng@2024-02-15

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