Evans Mageto Magata v Kisii University College [2019] KEELRC 2286 (KLR)

The court accepted the functus officio doctrine as articulated in Telkom Kenya Ltd v John Ochanda and the Pretorious article: a final decision cannot be reopened or varied by the decision maker. However, the court distinguished between reopening the consent judgment and complaining about its execution. The claimant's grievance was that the respondent implemented the consent by placing him on a term contract rather than reinstating his pre-termination position, which generated a fresh dispute. That complaint goes to execution, not to the judgment itself, so the functus officio bar did not apply to hearing the application.

The court held that while a party may scrutinise the execution of a consent order, such scrutiny cannot yield an order of reinstatement arising from a fresh and different set of circumstances. Reinstatement at an interlocutory stage is impermissible in law and practice. The claimant was in effect introducing a new edifice into concluded proceedings, which would reopen the matter; the tenable route would have been an application for review of the consent judgment, which was not pursued. The application therefore failed on its form and intent.