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ELCDismissedNot stated in the judgment· [2024] KEELC 7122 (KLR)

Abed v Salim (Environment and Land Appeal E016 of 2023) [2024] KEELC 7122 (KLR)

Environment and Land Court
30 October 2024
2,297 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa refused to extend a tenant's deadline to vacate, ruling that once final judgment is delivered, the court cannot reopen the matter — the tenant's remedy is an appeal.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Matheka J) on a notice of motion dated 14th June 2024 brought by the Applicant under sections 13(1), (2)(e), (7)(a), (14) and 19 of the Environment and Land Court Act, sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution. The Applicant, whose butchery business ('Hawere Butchery') occupies plot no. 010860, Kongowea, Mombasa, sought leave for new advocates to come on record after judgment, a stay of execution of the court's judgment and decree of 24th April 2024, and variation of order 3 of the judgment so as to extend the 60-day compliance period for handing over vacant possession by 24 months. The Applicant relied on the need to relocate heavy equipment including cold storage facilities, county health licensing requirements for food businesses, and over 20 years of occupation. The Respondent opposed, contending the court was functus officio, that the termination notice had issued in January 2021, and that he would be prejudiced by further delay in enjoying the fruits of judgment. The court reviewed the law on review and functus officio, applying section 80 and Order 45 rule 1 of the Civil Procedure Act and the authorities in Mwihoko Housing, Rose Kaiza, National Bank of Kenya v Ndungu Njau, Telkom Kenya v Ochanda and Raila Odinga v IEBC. It held that having rendered final judgment it was functus officio and could not re-engage on the merits; the Applicant's remedy was an appeal. The application was dismissed with costs on 30th October 2024.

Key legal issues

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01

Whether the court, having delivered final judgment, retains competence to extend time for compliance and stay execution of its own decree

Holding

The court is functus officio; the applicant's remedy is an appeal, not a review or variation of the execution terms

Reasoning

The court traced the doctrine through Order 45 rule 1 and section 80 of the Civil Procedure Act, section 99 (correction of clerical errors), and the authorities in Mwihoko Housing, National Bank of Kenya v Ndungu Njau, Telkom Kenya Ltd v John Ochanda and Raila Odinga v IEBC. It found no error apparent on the face of the record, no new and important matter, and no other sufficient reason for review. The applicant had also continued enjoying the status quo months after judgment. The only avenue open was an appeal.

p. 5
02

Whether the hardship relied on by the applicant (relocation of heavy butchery equipment, licensing requirements, 20 years' occupation) constitutes sufficient reason for review or extension

Holding

The hardship asserted was insufficient to justify revisiting the judgment's execution terms

Reasoning

The applicant sought a 24-month extension citing heavy machinery, cold storage equipment, county health licensing requirements for a food-based business, and 20 years of occupation, and undertook to pay rent. The court accepted the factual premise but held that such considerations did not meet the threshold for review under Order 45 rule 1 and section 80 CPC, nor fall within the section 99 exceptions for accidental slips, noting the applicant remained in the premises four months after judgment.

p. 4

Legal principles established

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  • The functus officio doctrine does not bar a court from entertaining a case it has already decided but prevents it from revisiting the matter on a merit-based re-engagement once final judgment has been entered
  • The court's discretion to review its own decision under section 80 of the Civil Procedure Act must be exercised judiciously and not capriciously, on sufficient reason being given

Court orders

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  1. 1.The application dated 14th June 2024 is dismissed
  2. 2.Costs of the application to the Respondent (dismissed with costs)
On appeal from
Business Premises Rent Tribunal
Jurisdiction invoked
Sections 13(1), (2)(e), (7)(a), (14) and 19 of the Environment and Land Court Act No. 19 of 2011; Sections 1A and 1B of the Civil Procedure Act; Article 159 of the Constitution of Kenya

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, "Abed v Salim (Environment and Land Appeal E016 of 2023) [2024] KEELC 7122 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7122/eng@2024-10-30

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