Shakila Begum Ali (as personal representative of the Estate of the Late Mehboob Mohamed Abdul Gafoor Mohamed Mulah also known as Mehboob Mohamed Abdulgafoor and Mehboob Mullah) v Vescon Properties Limited & another [2019] KEELC 434 (KLR)

reinstated. The 1st defendant has noted that the plaintiff was duly served with the notice to show cause through her previous advocates then on record who informed the plaintiff of the same prompting the plaintiff to appoint her current advocates to take over the matter and show cause on 1st November, 2018. That the plaintiff and her advocate failed to show cause leading to the dismissal of the case. The 1 st defendant states that having failed to show cause, and being aggrieved by the order of dismissal, the only avenue for her is to seek redress through appeal to the Court of Appeal and not seeking reinstatement. The 1 st defendant argues that the plaintiff cannot blame her previous advocates for the dismissal of the suit because it is now settled that a litigant is the owner of his/her case and should follow up the progress of the same. The 1st defendant further contends that once the court dismissed the suit for want of prosecution on merit, the court became “ functus officio”. The 1st defendant urged the court to disallow the application. 5. The application was canvassed by way of written submissions which were duly filed by the plaintiff/applicant and the 1 st defendant. I have considered the application. The suit was filed on 9 th July, 2014. The record shows that from 9 th July 2014 to 8 th March, 2017 no action was taken in the matter. Although the matter was fixed for hearing on 7/6/17 and 25/10/17, the hearing did not take place. Pursuant to a notice to show cause under Order 17 Rule 2 which was duly served by the court, the suit was dismissed by the occur on 1 st November, 2018. The applicant’s advocate appeared before the court on 1 st November 2018. The court however was not satisfied with the reasons given and went ahead to dismiss the suit. According to the court (Matheka, J), the reasons given by the plaintiff through her advocate, were not sufficient. 6. The issue that arises is whether this court has jurisdiction to grant the orders sought for reinstatement of the suit or the court is functus officio. Ordinarily a suit would come to an end when a court has rendered a decision and that decision has been effected. At that point, the court is said to be functus officio and any party who is aggrieved must now pursue the course of appeal or review to a higher court. 7. In the case of Raila Odinga & 2 Others –v- Independent Electoral & Boundaries Commission & 3 Others (2013) eKLR held as follows: “(18)…………….Daniel Malan Pretorius, in “The origins of the functus officio Doctrine, with specific Applicant in Administrative Law,”(2005) 122 SALJ 832, has thus explicated this concept: “The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter….. The (principle) is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker”. (19) This principle has been aptly summarized further in Jersey Evening Post Limited –v- Al Thani (2002) JLR 542 at 550. “A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decisions; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.” 8. Similarly, in Menginya Salim Murgani –v- Kenya Revenue Authority (2014) eKLR, the Supreme Court of Kenya held that: “It is a general principle of law that a court after passing judgment, becomes functus officio and cannot revisit the judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law.” 9. In this case, the court did deliver its decision on 1 st November, 2018 to dismiss the suit for want of prosecution. This decision was done after the plaintiff was heard. In my view, the decision of the court dismissing the suit on 1 st November 2018 was made in accordance with the law and procedure and the court cannot be called upon to sit on appeal on its own decision or of a court of concurrent jurisdiction. Applying the laid down principles cited hereinabove to the circumstances of this case, it is my finding that the court is functus officio and I have no jurisdiction to entertain the application to reinstate the suit. A party who is aggrieved by the decision of the court may only apply for review or file an appeal. I cannot pretend to sit on appeal over a decision made by a court of concurrent jurisdiction. 10. In the result, I find that the notice of motion dated 22 nd November 2018 is without merit and the same is hereby dismissed with costs to the defendants. It is so ordered. DATED, SIGNED and DELIVERED at MOMBASA this 28th day of November 2019. ___________________________ C.K. YANO

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JUDGE IN THE PRESENCE OF: Hassan for plaintiff Ms. Mugoya holding brief for Ajieko for 1st defendant No appearance for 2nd defendant Yumna Court Assistant C.K. YANO JUDGE

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