Cherotich (Donee) (Suing on behalf of Edwin Kabuiywa Mamit) v DC Ngeno & Company Advocates (Environment and Land Miscellaneous Application E013 of 2025) [2026] KEELC 3845 (KLR)

Relying on Telkom Kenya Limited v John Ochanda, functus officio prevents re-opening of a matter after a final decision on merit. Drawing on Mbaraka Issa Kombo v IEBC, the court distinguished striking out (a summary procedure that investigates no merits) from dismissal (which follows scrutiny of the merits). Since the reference dated 22nd May, 2025 was struck out solely for being filed out of time and without leave, it was never determined on its merits and the Court retained jurisdiction.

Although the Taxing Officer had granted thirty days to appeal, the statutory period under Paragraph 11 was fourteen days, which the Applicant missed by nine days. The delay was attributed to confusion between the statutory and court-granted timelines. Applying the factors from Leo Sila Mutiso and County Government of Tana River v Miller, the court found the delay short, explained, and unprejudicial, and held that reliance on the Taxing Officer's directions constituted sufficient cause. The Taxing Officer's leave was immaterial but did not disentitle the Applicant.

The Respondent argued res judicata only in submissions, without having raised it in the Replying Affidavit. Citing FMS v MAS and the Zapkass Consulting decision, the court reiterated that submissions are not pleadings and new issues raised by way of submissions unsupported by affidavit evidence are best ignored. The res judicata argument was therefore excluded from consideration.

The court stated the general rule under Section 27 of the Civil Procedure Act that costs follow the event and a successful party should ordinarily be awarded costs unless the court directs otherwise for good reason. Despite allowing the application, the court in the final orders directed that the Respondent shall have costs of the application, without giving reasons for departing from the general rule.