Kithuku v Mutuku (Environment & Land Case 28 of 2019) [2024] KEELC 6239 (KLR)
The bottom line
#A Kenyan court confirmed it can review its own judgment unless and until it has ruled on a properly filed review application.
What this practically means
#Executive summary
#Key legal issues
#Whether the court is functus officio after delivering judgment on 17th May 2023 such that it cannot entertain the application for review
The court is not functus officio; it has not yet pronounced itself on the pending review application, and Section 80 of the Civil Procedure Act read with Order 45 Rule 1 confers jurisdiction to review its own judgment.
The court set out the doctrine of functus officio as stated in Telkom Kenya Limited v John Ochanda and Jersey Evening Post Limited v Al Thani, noting that once proceedings are finally concluded a court cannot review its decision. However, it found that the Plaintiff had filed an application for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1, and that the court had not yet determined that application. Until it does so, the court retains jurisdiction over the review application and is therefore not functus officio.
Whether the preliminary objection met the Mukisa Biscuits threshold of a pure point of law
The objection, dismissed as devoid of merit, was considered against the settled standard that a preliminary objection must be a pure point of law not dependent on contested facts.
The court restated the Mukisa Biscuits and Oraro v Mbaja formulations: a preliminary objection must raise a point of law based on assumed, undisputed facts and cannot require ascertainment of facts or exercise of judicial discretion. The court framed the sole determinative issue as whether it was functus officio, resolved it as a matter of law on the review jurisdiction, and concluded the objection lacked merit.
Legal principles established
#- A court retains jurisdiction to review its own judgment under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, and is not functus officio until it has pronounced itself on such an application.
- A valid preliminary objection must be on a pure point of law, founded on undisputed facts, and must not require ascertainment of facts or exercise of judicial discretion.
Court orders
#- 1.The preliminary objection raised by the Defendant is dismissed with costs
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithuku v Mutuku (Environment & Land Case 28 of 2019) [2024] KEELC 6239 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6239/eng@2024-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.