Njoroge v National Social Security Fund Board of Trustees

was required to execute the said transfer documents within fourteen (14) days of receipt thereof. ii. If the Respondent/Judgment Debtor failed to comply within the stipulated period, the Deputy Registrar of the Court was directed to execute and/or sign, on behalf of the Judgment Debtor, all transfer documents relating to the apartments known as Hazina-B30/F1-F9 and L.R. No. Kitusuru 101/C233 in favour of the Decree Holder. iii. The Court further directed the parties to meet on 17.10.2025 with a view to reaching an agreement on the issue of the statements of account. iv. The matter was thereafter xed for mention on 29.10.2025 to conrm settlement and/or, in the alternative, to give directions for the hearing of the issue relating to the accounts. 5. When the matter came up for mention on 29.10.2025, the parties informed the Court that they had been unable to meet as directed because the date had been declared a public holiday. 6. Consequently, the matter was adjourned, and the parties were directed to meet on 13.11.2025. The matter was subsequently xed for mention on 27.11.2025. 7. On 27.11.2025, the parties informed the Court that they had been unable to reach an agreement and sought a further opportunity to do so. The Court granted the request and xed the matter for mention on 28.1.2026 to ascertain the progress made. 8. On 28.1.2026, the parties again informed the Court that they had been unable to agree and sought a further mention date. The Court accordingly xed the matter for mention on 2.3.2026. However, the Court did not sit on the said date. 9. When the matter subsequently came before this Court on 8.7.2026, the parties informed the Court that they had still been unable to agree on the taking of accounts. The Court consequently directed the parties to le submissions addressing the specic points of divergence by 22.7. 2026. 10. In compliance with the said directions, only the Respondent led submissions dated 22.7.2026. The court cannot speculate what the contestation on the side of the applicant is without the submissions. 11. Be that as it may, the doctrine of functus ocio is founded on the principle of nality of litigation. Once a court has discharged its adjudicative function and rendered a nal decision, it cannot ordinarily reopen the merits of the dispute and exercise the same adjudicative jurisdiction a second time. 12. The Court of Appeal in Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR explained that the doctrine of functus ocio prevents a court from engaging in a merit-based decisional re-engagement with a matter after nal judgment and issuance of the decree. The doctrine, however, does not prevent the court from dealing with proceedings incidental to, or consequential upon, its nal decision. 13. The same principle has been repeatedly applied by the High Court and the Environment and Land Court. In John Gilbert Ouma v Kenya Ferry Services Limited [2021] KEHC 7107 (KLR), the Court observed that functus ocio does not bar all engagement with a concluded matter, but prevents the Court from revisiting the matter through a merit-based adjudication after nal judgment and decree. 14. Further, in Kenya Broadcasting Corporation v Georey Wakio [2019] KECA 65 (KLR), the Court of Appeal held that once proceedings are fully concluded and the judgment or order perfected, the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5650/eng@2026-09-23 2

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Court becomes functus ocio. The Court nevertheless retains jurisdiction over proceedings which are incidental to, or a natural consequence of, the nal decision, including execution proceedings and other matters falling within its supplemental jurisdiction. 15. In the present case, the Court delivered its Judgment on 11.5.2023. The Judgment determined the dispute between the parties and expressly directed the Defendant to furnish true and accurate statements of account relating to the identied properties for the specied period. 16. The subsequent proceedings were therefore proceedings arising from and intended to facilitate the implementation and enforcement of the Judgment. They did not revive the original cause for fresh adjudication. 17. It is important, in this regard, to distinguish between enforcement of an existing order and creation or determination of a new substantive right. 18. Where the Court is merely supervising compliance with its decree, settling the decree, issuing appropriate execution orders or dealing with an incidental matter necessary to give eect to its judgment, the Court is not necessarily functus ocio. Such proceedings are recognised as consequential proceedings arising from the judgment. 19. However, where parties disagree on the substantive content, accuracy or legal consequences of accounts and invite the Court to undertake a fresh merit-based adjudication going beyond the terms of the decree, such an exercise would amount to reopening the concluded dispute. 20. The Civil Procedure Rules recognise procedures relating to the taking of accounts. Order 20 of the Civil Procedure Rules deals generally with orders for accounts, while the Rules also permit the Court, where necessary, to refer accounts for examination by a referee. 21. Courts have recognised that the taking and settlement of accounts is ordinarily not a matter requiring the Judge personally to perform the functions of an accountant. In George Lalla Oduor v Cannon Assurance (K) Ltd [2016] KEHC 7622 (KLR), the Court emphasised that a Judge is not an accountant. 22. The Judgment of this court expressly directed the Defendant to furnish the Plainti with true and accurate statements of account in respect of Hazina-B30/F1 and L.R. No. Kitusuru 101/C233 for the specied period. The taking of accounts is therefore not a new cause of action or a reopening of the original dispute. It is a consequential step intended to give eect to an order already made by the Court. 23. Order 21 Rule 17 of the Civil Procedure Rules is particularly relevant. It provides that the Court may, either by the decree directing an account to be taken or by a subsequent order, give special directions regarding the manner in which the account is to be taken or vouched. 24. The eect of Order 21 Rule 17 is that the Court retains a limited supervisory jurisdiction over the process of taking accounts even after judgment. 25. The Court in Republic & another v County Secretary, County Government of Kitui [2025] KEHC 9262 (KLR) recognised that the Deputy Registrar may be directed to ascertain the outstanding balance so that execution is founded upon a veried amount. 26. The upshot is that this court is functus ocio when it comes to the determination of the parties' statement of accounts.The parties shall comply with the existing Judgment and decree and shall take all necessary steps towards bringing the matter to nality https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5650/eng@2026-09-23 3

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27. . The disputed accounts shall therefore be referred to the Deputy Registrar for taking, examination and reconciliation in accordance with the directions contained herein and Order 21 Rule 17 of the Civil Procedure Rules. 28. Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23rd DAY OF SEPTEMBER, 2026 HON. JUSTICE C.K NZILI JUDGE In the presence of: Mr Muigai for plainti Mr. Abuga for respondent Court Assistant: Julius https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5650/eng@2026-09-23 4

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