Standard Chartered Kenya Nominees Limited

made on 9th November 2023, pending the hearing and determination of the intended Appeal against the dismissal order. iv. In the alternative to prayer b above, this Honorable Court be pleased to grant an order for maintenance of this status quo as of 9th November 2023, pending the hearing and determination of this Application. v. In the alternative to prayer c above, this Honorable Court be pleased to grant an order for maintenance of this status quo as of 9th November 2023, pending the hearing and determination of the intended Appeal. vi. The costs of and occasioned by this Application be provided for. 2. The application is premised on the main ground that following the dismissal of the Plainti’s suit on 9th November 2023, the Plainti has preferred to appeal and has lodged a Notice of Appeal dated 16th November 2023 but the 1st Defendant was threatening to tear down the existing perimeter wall and infrastructure. It was also averred that the dismissal order did not grant rights of demolition or power to damage the Plaintis’ property. 3. In opposition to the application, the 1st Defendant led grounds of opposition dated 20th November 2023. It was argued that the application was incurably defective and it was inexcusable that the Applicant failed to comply with the mandatory provisions. Additionally, it was argued that the provisions under which the application is brought under cannot be the basis for the Court to grant the orders sought. Relying on the case of Sendy Kenya Freight Limited vs Multiple Hauliers Limited (2021) eKLR it was argued that Courts in similar circumstances of non-compliance with rules had opted to dismiss the suits and therefore in this instance, the Court ought to dismiss the said application. 4. I have considered the application, the grounds of opposition and oral submissions made by counsel for the parties. In my view, the main issue that arises for determination is whether the application dated 17th November 2023 is merited? 5. I wish to reiterate that the Courts exists to protect and promote the rights of all persons without fear or favour. In determining the merit of the application placed before it, this Court must answer whether a Court can grant conservatory orders after being rendered functus officio? Black’s Law Dictionary denes functus officio as: “ …Having fullled the function, discharged the oce, or accomplished the purpose, and therefore of no further force or authority…” 6. The Court of Appeal in Behan & Okero Advocates vs National Bank Of Kenya (2007) eKLR was of the view that a party cannot be allowed to blow hot and cold at the same time. The court further stated that considering that the suit has already been dismissed and the subsequent applications to revive it have been unsuccessful, the defendant’s applications have no merit as they have been brought and/ or premised on a non-existent suit. That to proceed to consider the merits or otherwise of the two applications would thus amount to an academic exercise. 7. The Supreme Court of Kenya discussed the doctrine of functus officio in Election Petitions Nos. 3, 4 & 5 Raila Odinga & Others vs. IEBC & Others [2013] eKLR where they cited with approval an excerpt from an article by Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832: “ The functus ocio doctrine is one of the mechanisms by means of which the law gives expression to the principle of nality. According to this doctrine, a person who is vested https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22505/eng@2023-12-18 2

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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) nal and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”[Emphasis Mine] 8. Additionally, the seven judge bench also made reference to Jersey Evening Post Limited v A1 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 nality. Once proceedings are nally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available” [Emphasis Mine] 7. In the instant case, It is undisputed that the fate of the suit was sealed upon its dismissal on 9th November 2023. Consequently, in the usual order of practice, the Court would be deemed to have fullled its obligation to nality. In the foregoing, I nd that all prayers sought by the Plainti herein are untenable being that the Court is functus ocio and as such no suit exists to hold up or apply the prayers sought. In the circumstances, the application dated 17th November 2023 is without merit and the same is dismissed with costs. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18THDAY OF DECEMBER, 2023. E.K WABWOTO JUDGE In the presence of: Mr. Mbaluto and Mr. Ajak for the Plainti. Mr. Osundwa for the 1st Defendant. N/A for the other parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22505/eng@2023-12-18 3

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