1. The application vide the summons dated 3
rd May 2024 filed herein by the
firm of Mark Mwendwa & Company Advocates on behalf of William
Mudoga, traces its footprints from Kapsabet SPMCC NO. 170 of 2016, in
which the Appellant/ First Respondent, Batson Mudeshi Adingo obtained
grant of letters of administration intestate respecting the estate of the late
Kiptarus Arap Arusei [deceased] comprising of a parcel of land described
as Land Parcel No. Nandi/Serem/271.
2. In the Petitioner for grant of Letters of Administration, the Appellant indicated
that he was a nephew to the deceased, and the grant was eventually issued
to him on the 15
th May 2017. Thereafter on the 17
th November 2017 the
Applicant [William] and Henry Aswani Agosa, the Second Respondent
herein, were allowed by the court to be enjoined in the succession
proceedings as interested parties. The two had filed an objection to
confirmation of the grant and distribution of the estate property as proposed
by the Appellant.
3. The objection was duly considered by the trial court and allowed in its ruling
made on 25
th March 2019. The objectors were thus considered as
beneficiaries of the deceased’s estate and included in this cause.
Being dissatisfied with the court’s ruling the Appellant filed the present
appeal at the Eldoret High Court, being Civil Appeal No. 39 of 2020 at
Eldoret. The memorandum of appeal was dated 13
th May 2020, but on the
16
th April 2021, the matter was transferred from Eldoret High Court to this
court and became Kapsabet High Court Civil Appeal No. 10 of 2021.
4. After the hearing of the appeal, this court differently constituted rendered its
judgment on 17
th May 2023 upholding the appeal and setting aside the ruling
of the lower trial court made on the 25
th March 2019.
Thereafter, on the 29
th May 2023, the impugned grant of letters of
administration was confirmed in favour of the Appellant and a certificate of
confirmation of grant issued accordingly. Thus, the estate property Land
Parcel No. Nandi/Serem/271 was wholly transmitted to the Appellant as the
sole beneficiary.
5. Seemingly, the judgment of the court delivered on the 17
th May 2023 and the
issuance of the certificate of confirmation of grant on 29
th May 2023, marked
the conclusion of this matter in this court.
The next “port of call” for any aggrieved party was the Court of Appeal.
However, the Applicant after a period of about one [1] year returned to this
court with the present application dated 3
rd May 2024, for leave to the firm of
Mark Mwendwa & Company Advocate to come on record on his behalf
and essentially for review of the judgment delivered by this court on 17
th May
2023.
6. In response, the Appellant through the firm of D.E.K Marete & Company
Advocate, filed a Notice of Preliminary Objection to the application dated
28
th March 2025. This was canvassed by written submissions. In addition,
the Applicant filed a replying affidavit on the objection. It is dated 26
th April
2025.
Both the affidavit and the Applicant’s written submissions dated 26
th April
2025 were drawn and filed by Mark Mwendwa & Company Advocates.
7. The Appellant/ First Respondent’s written submissions dated 28
th April 2025
were filed by D.E.K Marete & Company Advocates, but taken over by
Ochieng Ndolo & Company Advocates by consent of both firms. There is
no response from the Second Respondent on either the application or the
preliminary objection.
In essence, this ruling is only on the preliminary objection to the present
application dated 3
rd May 2024.
8. Basically, a preliminary objection as was stated by the Court of Appeal in the
case of Mukisa Biscuit Manufacturing Company Limited Vs. Westend
Distributors Limited [1969] E.A. 698, is in the nature of what used to be a
demurrer. It raises a pure point of law which is argued on the assumption
that all the facts pleaded by the other side are correct. It cannot be raised if
any fact has to be ascertained or what is sought is the exercise of judicial
discretion.
9. This means that a preliminary objection cannot be raised if the facts are
contested or evidence must be evaluated or the matter requires judicial
discretion. Such objections are therefore limited to pure questions of law
and cannot involve factual inquiries thereby protecting judicial time and
preventing abuse of the court process.
10. Herein, the objections is clearly anchored on the seven [7] grounds
specified in the notice dated the 28
th March 2025. In this court’s opinion
however, only ground four [4] raised a point of law in so far as the doctrine of
functus-officio is invoked which if applied to the circumstances of this case
would divest this court’s jurisdiction to entertain the impugned application
dated 3
rd May 2024.
11. The first, second, third and fifth grounds of the objection would require
ascertainment by appropriate evidence and indeed, exercise of judicial
discretion in arriving at a determination in respect thereof.
While ground six is more or less a contention by the Applicant that the
impugned application is an abuse of the court process and ought to be
dismissed with costs, ground seven is merely a prayer for dismissal of the
application.
12. It is therefore the finding of this court that grounds one, two three, five,
six and seven of the objection do not raise pure points of law to mount and
sustain the objection. They are accordingly, overruled and dismissed. With
regard to ground four [4], the Appellant/ Objector contends that this matter is
“functus-officio” as this honourable court had pronounced itself and cannot
therefore sit on its own appeal since the issues raised herein are captured in
the disputed judgment.
13. To buttress the foregoing contention, the Appellant cited the decision of
the Court of Appeal in the case of Telkom [K] Limited Vs. John Ochanda
[suing on his behalf and on behalf of 996 former employees of Telkom
[K] Limited, which examined the “functus Officio” doctrine. The Appellant
thus submitted that this court having discharged its duties and/or
pronounced itself via the judgment delivered on 17
th May 2023, has no
jurisdiction to entertain the application before it as it is “functus – officio.”
14. In response to the appellate’s contention the Applicant in the impugned
application cited the decision of the Land and Environment Court in the case
of Cove Investments Limited Vs. Rono & Another [2024] were the court
observed that: -
“The doctrine of “functus Officio” is a principle of law that
prevents the reopening of a matter before a court that has
rendered a final decision on the matter. It is to ensure that
there is finality in litigation and if a person is aggrieved by
an order of the court then they have a right of appeal”
15. In that regard, the Applicant submitted that in as much as the “functus
officio” doctrine seeks to promote the doctrine of finality in litigation, there
are exceptions to the doctrine under the law as was stated in the case of In
re-estate of Kinuthia Mahuti [deceased] [2018] eKLR, where the court
observed that:-
“While this court is vested with adjudicative powers, once a
court becomes functus officio, the only orders it can grant
are review orders which are an exception to the functus
officio doctrine.”
16. The Applicant therefore contends that the court’s power of review is an
exception to the “functus officio” doctrine and that the court only becomes
“functus officio” when an appeal has been lodged against its order or
decree. That, it is after the filing of an appeal that the court can no longer
exercise its power of review.
The Applicant submitted that in this matter no appeal has been lodged
against the impugned judgment delivered on 17
th May 2023. Therefore, this
court is not functus officio to hear and determine the application for review of
the judgment.
17. The Applicant further cited the case of Madison Insurance Company
Limited Vs. Mung’ot [2022] eKLR, where it was held that the court is not
functus officio in respect of post judgment application for review of the
judgment and/or setting aside of the judgment.
The Applicant submitted that the present preliminary objection is unmerited
and prays for its dismissal with costs.
18. All the factors foregoing clearly indicate that the basic issue for
determination with regard to ground four [4] of the objection is whether this
court is functus-officio, hence lacking jurisdiction to deal with the impugned
application for review of its judgment made on 17
th May 2023.
Generally, a judgment may be reviewed, but typically for errors apparent on
the face of the record or availability of new evidence.
19. The “functus-officio” doctrine is a legal principle which pre supposes
that once a court has made a final decision it cannot revisit or alter it. The
principle puts into effect the doctrine of finality in litigation. However, there
are exceptions to the principle. A court could apply the doctrine of “functus
officio” when it cannot alter its final judgment just because a party is
dissatisfied with the outcome. A decree cannot be altered once it is drawn
and executed.
20. The exception to the doctrine include correction of clerical errors or
slips or review of a judgment and/or setting aside a judgment [See, the
Madison Insurance Company Limited Case [Supra]. Even in succession
causes the doctrine applies, but with some flexibility as courts can revisit or
vary orders in succession matters under certain circumstances informed by
the need to correct errors or protect the interest of the estate. In any event,
the High Court has inherent jurisdiction in succession proceedings and may
exercise discretion to ensure justice is done.
21. The Court of Appeal in the case of Telkom [K] Limited Vs. John
Ochanda [suing on his own behalf and on behalf of 996 former
Employees of Telkom [K] Limited [2014] e KLR, which was cited herein
by the Appellant/ First Respondent, stated as follows with regard to the
doctrine of “functus-officio.”: -
“Functus Officio is an enduring principle of law that
prevents the re-opening of a matter before a court that
rendered the final decision thereon. .....................
In the Canadian case of Chandler Vs. Alberta Association
of Architects [1989] 2 S.C.R 84, Sopinka J. traced the
origins of the doctrine as follows [at P. 860]
“The general rule that a final decision of a court cannot be
re opened derives from the decision of the English Court of
Appeal in re-stNaizaire Company [1879] 12 ch.D 88. The
basis of it was that the power to rehear was transferred by
the judicature Acts to the appellate division. The rule
applied only after the formal judgment had been drawn up
issued and entered and was subject to two exceptions: -
1. Where there had been a slip in drawing it up and
2. Where the was an error in expressing the manifest
intention of the court ..............”
22. The court went further to state that: -
“The Supreme Court in Raila Odinga Vs. IEBC cited with
approval an excerpt from an article by Daniel Malan
Pretorius entitled the origins of the Functus Officio Doctrine
with special reference to its Application in Administrative
law “[2005 122 SALJ 832 in which the learned author stated:
..........” “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 superior body or
functionary] final and conclusive. Such a decision cannot
be reviewed or varied by the decision maker.”
23. The Supreme Court in the case of Raila Odinga & 2 Others Vs.
IEBC & 3 Others [2013] e KLR, cited and applied the case of Jersey
Evening Post Limited Vs. AI Thani [2002] KLR 542 in which it was stated
that: -
“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
conducted and the court functus when its judgment or order
has been perfected. The purpose of the doctrines is to
provide finality. Once proceedings are finally concluded,
the court cannot review or alter its decision; any challenge
to its ruling or adjudication must be taken to a higher court
if that right is available.”
24. Guided by the foregoing decisions of the court and in particular, the
Raila Odinga case [supra] and regard being given to the substratum of the
intended application of review of the impugned judgment, it is the opinion of
this court that the disputed application would not fall within the exceptions to
the doctrine of “functus officio.”
There is no demonstrable slip and/or mistake on the face of the judgment,
neither is there new evidence which was not available as at the time of or
even before the judgment was rendered. By and large the intended
application is skewed towards questioning the merits of the decision.
25. In particular, the courts’ finding that the applicant was not a valid
beneficiary of the subject estate and could not claim any right thereon on
account of a purchasers interest as there was no evidence whatsoever to
establish the fact. The main issue was not whether or not the Appellant/
First Respondent was a beneficiary of the estate in whatever capacity, but
whether the Applicant enjoyed a purchaser’s interest in the estate by dint of
a valid sale transaction, hence a beneficiary thereof.
26. Whereas the trial court found in favour of the Applicant, this court on
appeal found otherwise and allowed the appeal in favour of the Appellant. In
that regard, this court rendered itself thus: -
“.......................before claiming purchaser’s interest the
Objectors were under a duty to prove that there was a sale
agreement between themselves and the deceased. A
chief’s letter is not evidence of purchase and the trial
magistrate erred in relying on the same as conclusive
evidence. The finding that there was evidence that the
property was purchased by their kin is erroneous as there
was no evidence adduced that the purchasers in the
agreements were the Objector’s kin, or if indeed they were,
that they had obtained letters of administration to represent
the estates of their kin in their claim for a share of this
intestate estate.”
27. This finding brought to an end the issue pertaining to the Applicant’s
alleged purchaser’s interest in the property. The Applicant has therefore
failed to demonstrate discovery of new evidence and/or slip in the finding so
as to invariably upset it and provide sufficient fodder for valid review of the
impugned judgment.
28. Clearly, the intended application is an attempt to take a second or even
third bite at the cherry. It was pursuant to the impugned judgment of this
court that the impugned grant was confirmed and a certificate of confirmation
of grant issued thereby implying that the estate has since been distributed to
the deserving beneficiary/ beneficiaries. There is nothing left for distribution
unless a higher court rules otherwise.
As it were, the estate is since spent.
29. The impugned judgment was a clear and final expression of the court’s
intention which was ultimately perfected by the issuance of the certificate of
confirmation of grant. The Applicant; if dissatisfied with the decision of the
court ought to have agitated for an appeal to the Court of Appeal rather than
returning in this court for a review of the judgment without valid grounds.
30. In this matter, there was finality as to the proceedings, merits and the
decision.
This court is therefore “funtus officio”, hence without jurisdiction to deal with
the matter any further.
The Applicant’s grievance may be addressed in the Court of Appeal as the
doctrine of “functus-officio” clearly bars a merit based decisional re-
engagement with the case once final judgment has been entered and a
decree thereon [read certificate of confirmation of grant] issued. [See, the
Telkom [K] Limited Vs. John Ochanda case [Supra]].
31. In the circumstance, ground four [4] of the notice of preliminary
objection dated 28
th March 2025 is hereby sustained to the extent that the
application dated 3
rd May 2024 must be and is hereby dismissed for want of
merit and being an abuse of the court process. The Appellant/ First
Respondent shall have the costs of the application.
Dated and Delivered this 11
th day of February 2026
HON. J. R. KARANJAH,
JUDGE
rd May 2024 filed herein by the
firm of Mark Mwendwa & Company Advocates on behalf of William
Mudoga, traces its footprints from Kapsabet SPMCC NO. 170 of 2016, in
which the Appellant/ First Respondent, Batson Mudeshi Adingo obtained
grant of letters of administration intestate respecting the estate of the late
Kiptarus Arap Arusei [deceased] comprising of a parcel of land described
as Land Parcel No. Nandi/Serem/271.
2. In the Petitioner for grant of Letters of Administration, the Appellant indicated
that he was a nephew to the deceased, and the grant was eventually issued
to him on the 15
th May 2017. Thereafter on the 17
th November 2017 the
Applicant [William] and Henry Aswani Agosa, the Second Respondent
herein, were allowed by the court to be enjoined in the succession
proceedings as interested parties. The two had filed an objection to
confirmation of the grant and distribution of the estate property as proposed
by the Appellant.
3. The objection was duly considered by the trial court and allowed in its ruling
made on 25
th March 2019. The objectors were thus considered as
beneficiaries of the deceased’s estate and included in this cause.
Being dissatisfied with the court’s ruling the Appellant filed the present
appeal at the Eldoret High Court, being Civil Appeal No. 39 of 2020 at
Eldoret. The memorandum of appeal was dated 13
th May 2020, but on the
16
th April 2021, the matter was transferred from Eldoret High Court to this
court and became Kapsabet High Court Civil Appeal No. 10 of 2021.
4. After the hearing of the appeal, this court differently constituted rendered its
judgment on 17
th May 2023 upholding the appeal and setting aside the ruling
of the lower trial court made on the 25
th March 2019.
Thereafter, on the 29
th May 2023, the impugned grant of letters of
administration was confirmed in favour of the Appellant and a certificate of
confirmation of grant issued accordingly. Thus, the estate property Land
Parcel No. Nandi/Serem/271 was wholly transmitted to the Appellant as the
sole beneficiary.
5. Seemingly, the judgment of the court delivered on the 17
th May 2023 and the
issuance of the certificate of confirmation of grant on 29
th May 2023, marked
the conclusion of this matter in this court.
The next “port of call” for any aggrieved party was the Court of Appeal.
However, the Applicant after a period of about one [1] year returned to this
court with the present application dated 3
rd May 2024, for leave to the firm of
Mark Mwendwa & Company Advocate to come on record on his behalf
and essentially for review of the judgment delivered by this court on 17
th May
2023.
6. In response, the Appellant through the firm of D.E.K Marete & Company
Advocate, filed a Notice of Preliminary Objection to the application dated
28
th March 2025. This was canvassed by written submissions. In addition,
the Applicant filed a replying affidavit on the objection. It is dated 26
th April
2025.
Both the affidavit and the Applicant’s written submissions dated 26
th April
2025 were drawn and filed by Mark Mwendwa & Company Advocates.
7. The Appellant/ First Respondent’s written submissions dated 28
th April 2025
were filed by D.E.K Marete & Company Advocates, but taken over by
Ochieng Ndolo & Company Advocates by consent of both firms. There is
no response from the Second Respondent on either the application or the
preliminary objection.
In essence, this ruling is only on the preliminary objection to the present
application dated 3
rd May 2024.
8. Basically, a preliminary objection as was stated by the Court of Appeal in the
case of Mukisa Biscuit Manufacturing Company Limited Vs. Westend
Distributors Limited [1969] E.A. 698, is in the nature of what used to be a
demurrer. It raises a pure point of law which is argued on the assumption
that all the facts pleaded by the other side are correct. It cannot be raised if
any fact has to be ascertained or what is sought is the exercise of judicial
discretion.
9. This means that a preliminary objection cannot be raised if the facts are
contested or evidence must be evaluated or the matter requires judicial
discretion. Such objections are therefore limited to pure questions of law
and cannot involve factual inquiries thereby protecting judicial time and
preventing abuse of the court process.
10. Herein, the objections is clearly anchored on the seven [7] grounds
specified in the notice dated the 28
th March 2025. In this court’s opinion
however, only ground four [4] raised a point of law in so far as the doctrine of
functus-officio is invoked which if applied to the circumstances of this case
would divest this court’s jurisdiction to entertain the impugned application
dated 3
rd May 2024.
11. The first, second, third and fifth grounds of the objection would require
ascertainment by appropriate evidence and indeed, exercise of judicial
discretion in arriving at a determination in respect thereof.
While ground six is more or less a contention by the Applicant that the
impugned application is an abuse of the court process and ought to be
dismissed with costs, ground seven is merely a prayer for dismissal of the
application.
12. It is therefore the finding of this court that grounds one, two three, five,
six and seven of the objection do not raise pure points of law to mount and
sustain the objection. They are accordingly, overruled and dismissed. With
regard to ground four [4], the Appellant/ Objector contends that this matter is
“functus-officio” as this honourable court had pronounced itself and cannot
therefore sit on its own appeal since the issues raised herein are captured in
the disputed judgment.
13. To buttress the foregoing contention, the Appellant cited the decision of
the Court of Appeal in the case of Telkom [K] Limited Vs. John Ochanda
[suing on his behalf and on behalf of 996 former employees of Telkom
[K] Limited, which examined the “functus Officio” doctrine. The Appellant
thus submitted that this court having discharged its duties and/or
pronounced itself via the judgment delivered on 17
th May 2023, has no
jurisdiction to entertain the application before it as it is “functus – officio.”
14. In response to the appellate’s contention the Applicant in the impugned
application cited the decision of the Land and Environment Court in the case
of Cove Investments Limited Vs. Rono & Another [2024] were the court
observed that: -
“The doctrine of “functus Officio” is a principle of law that
prevents the reopening of a matter before a court that has
rendered a final decision on the matter. It is to ensure that
there is finality in litigation and if a person is aggrieved by
an order of the court then they have a right of appeal”
15. In that regard, the Applicant submitted that in as much as the “functus
officio” doctrine seeks to promote the doctrine of finality in litigation, there
are exceptions to the doctrine under the law as was stated in the case of In
re-estate of Kinuthia Mahuti [deceased] [2018] eKLR, where the court
observed that:-
“While this court is vested with adjudicative powers, once a
court becomes functus officio, the only orders it can grant
are review orders which are an exception to the functus
officio doctrine.”
16. The Applicant therefore contends that the court’s power of review is an
exception to the “functus officio” doctrine and that the court only becomes
“functus officio” when an appeal has been lodged against its order or
decree. That, it is after the filing of an appeal that the court can no longer
exercise its power of review.
The Applicant submitted that in this matter no appeal has been lodged
against the impugned judgment delivered on 17
th May 2023. Therefore, this
court is not functus officio to hear and determine the application for review of
the judgment.
17. The Applicant further cited the case of Madison Insurance Company
Limited Vs. Mung’ot [2022] eKLR, where it was held that the court is not
functus officio in respect of post judgment application for review of the
judgment and/or setting aside of the judgment.
The Applicant submitted that the present preliminary objection is unmerited
and prays for its dismissal with costs.
18. All the factors foregoing clearly indicate that the basic issue for
determination with regard to ground four [4] of the objection is whether this
court is functus-officio, hence lacking jurisdiction to deal with the impugned
application for review of its judgment made on 17
th May 2023.
Generally, a judgment may be reviewed, but typically for errors apparent on
the face of the record or availability of new evidence.
19. The “functus-officio” doctrine is a legal principle which pre supposes
that once a court has made a final decision it cannot revisit or alter it. The
principle puts into effect the doctrine of finality in litigation. However, there
are exceptions to the principle. A court could apply the doctrine of “functus
officio” when it cannot alter its final judgment just because a party is
dissatisfied with the outcome. A decree cannot be altered once it is drawn
and executed.
20. The exception to the doctrine include correction of clerical errors or
slips or review of a judgment and/or setting aside a judgment [See, the
Madison Insurance Company Limited Case [Supra]. Even in succession
causes the doctrine applies, but with some flexibility as courts can revisit or
vary orders in succession matters under certain circumstances informed by
the need to correct errors or protect the interest of the estate. In any event,
the High Court has inherent jurisdiction in succession proceedings and may
exercise discretion to ensure justice is done.
21. The Court of Appeal in the case of Telkom [K] Limited Vs. John
Ochanda [suing on his own behalf and on behalf of 996 former
Employees of Telkom [K] Limited [2014] e KLR, which was cited herein
by the Appellant/ First Respondent, stated as follows with regard to the
doctrine of “functus-officio.”: -
“Functus Officio is an enduring principle of law that
prevents the re-opening of a matter before a court that
rendered the final decision thereon. .....................
In the Canadian case of Chandler Vs. Alberta Association
of Architects [1989] 2 S.C.R 84, Sopinka J. traced the
origins of the doctrine as follows [at P. 860]
“The general rule that a final decision of a court cannot be
re opened derives from the decision of the English Court of
Appeal in re-stNaizaire Company [1879] 12 ch.D 88. The
basis of it was that the power to rehear was transferred by
the judicature Acts to the appellate division. The rule
applied only after the formal judgment had been drawn up
issued and entered and was subject to two exceptions: -
1. Where there had been a slip in drawing it up and
2. Where the was an error in expressing the manifest
intention of the court ..............”
22. The court went further to state that: -
“The Supreme Court in Raila Odinga Vs. IEBC cited with
approval an excerpt from an article by Daniel Malan
Pretorius entitled the origins of the Functus Officio Doctrine
with special reference to its Application in Administrative
law “[2005 122 SALJ 832 in which the learned author stated:
..........” “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 superior body or
functionary] final and conclusive. Such a decision cannot
be reviewed or varied by the decision maker.”
23. The Supreme Court in the case of Raila Odinga & 2 Others Vs.
IEBC & 3 Others [2013] e KLR, cited and applied the case of Jersey
Evening Post Limited Vs. AI Thani [2002] KLR 542 in which it was stated
that: -
“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
conducted and the court functus when its judgment or order
has been perfected. The purpose of the doctrines is to
provide finality. Once proceedings are finally concluded,
the court cannot review or alter its decision; any challenge
to its ruling or adjudication must be taken to a higher court
if that right is available.”
24. Guided by the foregoing decisions of the court and in particular, the
Raila Odinga case [supra] and regard being given to the substratum of the
intended application of review of the impugned judgment, it is the opinion of
this court that the disputed application would not fall within the exceptions to
the doctrine of “functus officio.”
There is no demonstrable slip and/or mistake on the face of the judgment,
neither is there new evidence which was not available as at the time of or
even before the judgment was rendered. By and large the intended
application is skewed towards questioning the merits of the decision.
25. In particular, the courts’ finding that the applicant was not a valid
beneficiary of the subject estate and could not claim any right thereon on
account of a purchasers interest as there was no evidence whatsoever to
establish the fact. The main issue was not whether or not the Appellant/
First Respondent was a beneficiary of the estate in whatever capacity, but
whether the Applicant enjoyed a purchaser’s interest in the estate by dint of
a valid sale transaction, hence a beneficiary thereof.
26. Whereas the trial court found in favour of the Applicant, this court on
appeal found otherwise and allowed the appeal in favour of the Appellant. In
that regard, this court rendered itself thus: -
“.......................before claiming purchaser’s interest the
Objectors were under a duty to prove that there was a sale
agreement between themselves and the deceased. A
chief’s letter is not evidence of purchase and the trial
magistrate erred in relying on the same as conclusive
evidence. The finding that there was evidence that the
property was purchased by their kin is erroneous as there
was no evidence adduced that the purchasers in the
agreements were the Objector’s kin, or if indeed they were,
that they had obtained letters of administration to represent
the estates of their kin in their claim for a share of this
intestate estate.”
27. This finding brought to an end the issue pertaining to the Applicant’s
alleged purchaser’s interest in the property. The Applicant has therefore
failed to demonstrate discovery of new evidence and/or slip in the finding so
as to invariably upset it and provide sufficient fodder for valid review of the
impugned judgment.
28. Clearly, the intended application is an attempt to take a second or even
third bite at the cherry. It was pursuant to the impugned judgment of this
court that the impugned grant was confirmed and a certificate of confirmation
of grant issued thereby implying that the estate has since been distributed to
the deserving beneficiary/ beneficiaries. There is nothing left for distribution
unless a higher court rules otherwise.
As it were, the estate is since spent.
29. The impugned judgment was a clear and final expression of the court’s
intention which was ultimately perfected by the issuance of the certificate of
confirmation of grant. The Applicant; if dissatisfied with the decision of the
court ought to have agitated for an appeal to the Court of Appeal rather than
returning in this court for a review of the judgment without valid grounds.
30. In this matter, there was finality as to the proceedings, merits and the
decision.
This court is therefore “funtus officio”, hence without jurisdiction to deal with
the matter any further.
The Applicant’s grievance may be addressed in the Court of Appeal as the
doctrine of “functus-officio” clearly bars a merit based decisional re-
engagement with the case once final judgment has been entered and a
decree thereon [read certificate of confirmation of grant] issued. [See, the
Telkom [K] Limited Vs. John Ochanda case [Supra]].
31. In the circumstance, ground four [4] of the notice of preliminary
objection dated 28
th March 2025 is hereby sustained to the extent that the
application dated 3
rd May 2024 must be and is hereby dismissed for want of
merit and being an abuse of the court process. The Appellant/ First
Respondent shall have the costs of the application.
Dated and Delivered this 11
th day of February 2026
HON. J. R. KARANJAH,
JUDGE