Introduction
1. This ruling determines the applicant's Notice of Motion dated 3 July 2025. The motion is expressed to be brought under sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21), Article 159 of the Constitution of Kenya. It is supported by the affidavit of Julius Orenge, advocate, sworn on 3 July 2025, and by the grounds on its face.
2. Save for the first prayer (that the application be certified urgent and heard ex parte), which is spent, the motion seeks the following substantive orders. First, that pursuant to clause (4) of the orders issued on 21 May 2025, the firm of Kanyi J. & Company Advocates be compelled to furnish the firm of Orenge J. & Associates with the bank, branch and account number in which the fixed deposit of Kshs. 507,260/- was made, within seven (7) days. Secondly, that in default, the partners in the firm of Kanyi J. & Company Advocates be ordered to personally refund and pay Orenge J. & Associates the sum of Kshs. 507,260/- together with accrued interest from 29 January 2020, within seven (7) days. Thirdly, that in default of that refund, the assets and properties of the firm's partners, in person, be attached in recovery and satisfaction of that sum. Fourthly, and in the alternative, that upon the bank details being provided, an order does issue against the said bank to release the sum, with accrued interest, to the account of Orenge J. & Associates. Costs and such further orders are also sought.
3. The application is opposed. The respondent relies on the replying affidavit of Kioko Maundu, advocate, sworn on 15 July 2025, and the supplementary affidavit sworn on 29 October 2025. Both parties filed written submissions, which I have carefully considered.
Background
4. There is no dispute as to the background of the application. The dispute has its origin in Mombasa CMCC No. 1542 of 2016, in which judgment and a decree dated 22 March 2019 were entered. This miscellaneous application was filed on 10 March 2019 seeking leave to appeal out of time and a stay of execution of that judgment and decree. It was compromised by consent orders recorded on 30 September 2019. Pursuant to that compromise, a sum of Kshs. 507,260/- was to be held as security pending the intended appeal.
5. On 14 October 2019, the applicant's then advocates, KRK Advocates LLP, and the respondent's advocates, Kanyi J. & Company Advocates, jointly wrote to NCBA Group (then NIC/CBA) authorising the bank, in their joint names, “to open a joint account in the name of KRK Advocates LLP AND Kanyi J. & Company Advocates” and further “to hold the funds deposited in a fixed deposit account”. A copy of that letter, bearing the signatures of both firms, is on the record.
6. By an application dated 1 October 2024, the applicant sought the release of the security. On 21May 2025, this Honorable Court recorded consent orders by which, among other things, the firm of Orenge J. & Associates was granted leave to come on record for the applicant in place of KRK Advocates LLP, and it was directed that the security be released. Clause (4) of those orders provided:
“That the sum of Kshs 507,260/= deposited in a joint interest earning account between KRK Advocates and Kanyi J advocates be released to the respondent’s advocate, Orenge J & Associates”.
7. The consent fell through hencethe present motion. The applicant says that, despite the consent order and its written requests, the firm of Kanyi J. & Company Advocates has refused or failed to provide the account particulars necessary to secure release of the funds. The respondent, for its part, says that it neither holds the funds nor the particulars, that the true custodian is the bank, and that the orders now sought are, in any event, incompetent.
The Applicant's Case
8. Mr. Orenge deposes that the consent order of 21 May 2025 is clear and directs release of the security; that clause (4) has not been complied with; and that court orders ought not to be issued in vain. He states that despite repeated requests, Kanyi J. & Company Advocates have declined to furnish the bank, branch and account details of the joint account in which the fixed deposit was placed, and that his firm has itself engaged the bank in an effort to trace the account. He contends that the deposit was made and that the firm of Kanyi J. & Company Advocates, being a joint holder of the account, cannot feign ignorance of it. In the premises, he urges the court to grant the orders sought so as to bring the matter to an end.
The Respondent's Case
9. Mr. Maundu deposes, in substance, that the application is devoid of merit and an abuse of the process of the court. He states that the applicant, as the alleged depositor, together with its advocates, ought to be in possession of the evidence of the deposit, or to obtain it from its erstwhile advocates, KRK Advocates LLP; that the firm of Kanyi J. & Company Advocates never received the funds in its favour; and that, if any funds were held, they were held in a joint account between both firms of advocates, or in court, and not in the respondent's favour. In the supplementary affidavit, the respondent exhibits correspondence showing that it has written to, and visited, NCBA Bank in an attempt to obtain the very particulars sought, without success.
10. In its submissions, the respondent takes three principal objections. First, that these proceedings were disposed of by the consent orders of 30 September 2019 and the court is functus officio, save for incidental and consequential orders; and that the reliefs now sought are new, substantive and independent claims amounting to a fresh cause of action which must be pursued by way of a suit. Secondly, that the orders are directed against the firm of Kanyi J. & Company Advocates and its partners, who are not, and have never been, parties to these proceedings, and who cannot be condemned unheard without joinder and a fair hearing. Thirdly, that if the applicant genuinely believed its order had been disobeyed, the proper course was contempt of court, which it has not pursued. The respondent adds that it neither holds the funds nor the particulars, and that the existence of the funds has not been proved.
Issues for determination
11. Having considered the pleadings, the affidavits, the annextures and the rival submissions, the issues that emerge for determination are whether the court is functus officio or otherwise lacks jurisdiction to entertain the motion; whether the firm of Kanyi J. & Company Advocates can be compelled to disclose the account particulars; whether the partners of Kanyi J. & Company Advocates can be ordered to personally pay the sum allegedly deposited in the bank account or their personal properties can be attached for settlement of the sum; whether the bank can be compelled to disclose information regarding the alleged joint bank account and, last but least the appropriate order on costs
Analysis and Determination
(a) Jurisdiction and the doctrine of functus officio
12. The respondent's threshold objection is that, the substratum of the application having been exhausted by the consent orders of 30 September 2019, this court is functus officio. The doctrine was explained by the Court of Appeal in Telkom Kenya Limited v John Ochanda [2014] eKLR, where the court adopted the following statement:
“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… [O]nce 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 reviewed or varied by the decision maker.”
13. The same principle has long been settled in the Commonwealth. In Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A), the Appellate Division of South Africa stated the general rule that “once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it”. That statement, though not binding on this court, is instructive and accords with the position our courts have adopted ad the correct position of law on this issue.
14. The doctrine, however, does not bear the weight the respondent places on it. It bars a court from re-opening and re-deciding, on the merits, a matter it has finally determined. It does not divest a court of the jurisdiction to enforce, implement or give effect to its own subsisting orders, nor to correct a manifest error in expressing its own intention. Indeed, Telkom Kenya Limited v John Ochanda [2014] eKLR itself recognises exceptions for the correction of clerical errors and for orders that do not reflect the court's manifest intention. The order of 21 May 2025 is a subsisting order of this court directing release of the security. A court retains the power and the duty to ensure that its orders are not rendered nugatory. To that limited extent, the court is not functus officio.
15. Before leaving this head, I note there is a patent slip in clause (4). While clause (4) speaks of release “to the respondent’s advocate, Orenge J & Associates”, clause (2) of the very same order granted Orenge J. & Associates leave to come on record for the applicant, in place of KRK Advocates LLP. The description of Orenge J. & Associates as “the respondent’s advocate” is, therefore, an obvious error not reflecting the court's manifest intention, which was to release the security to Orenge J. & Associates as the advocates then coming on record. Consistent with the exception recognised in Telkom Kenya Limited v John Ochanda [2014] eKLR, I clarify that clause (4) is to be read as directing release to Orenge J. & Associates, advocates on record for the applicant.
16. It must, however, be borne in mind that the order of 21 May 2025 was a consent order. As the Court of Appeal held in Flora N. Wasike v Destimo Wamboko [1988] eKLR, a consent order is in the nature of a contract and “can only be set aside on the same grounds as would justify the setting aside of a contract, for example fraud, mistake or misrepresentation”. Neither party seeks to set aside the consent order; both are bound by it although its binding force runs only as far as its terms.
(b) compelling disclosure of the account particulars
17. On the evidence, there is no doubt that a joint mandate was given to the bank. The joint letter of 14 October 2019, signed by both KRK Advocates LLP and Kanyi J. & Company Advocates, authorised the opening of an account in their joint names and the holding of the funds on fixed deposit. To that extent, both firms of advocates ought to be aware of the particulars or details of the account in which the security was deposited.
18. Ordinarily, such information is accessible to the account holders and, therefore, it is rather intriguing that the information has not been availed to the respondent’s advocates if the bank account was opened and the deposit made as the consent order suggests. Needless to say, a court of law does not act in vain, and equally it does not compel the impossible, that is, lex non cogit ad impossibilia. I am not persuaded that it would be just to compel the respondent's advocates, to produce particulars which the applicant ought to be aware of or are in the bank’s custody. Proceeding on the assumption that a joint account was opened and the funds deposited, the proper custodian of the funds would be the bank, and it is to the bank that a coercive disclosure order would ultimately be directed.
Personal liability of, and attachment against, the partners of Kanyi J. & Company Advocates.
19. All I can say here is that the applicant's suggestion that the firm of Kanyi J. & Company Advocates has “played ignorance” does not translate into a personal monetary liability. If a party genuinely believes that a clear and unambiguous order of the court, directed at a named person, has been wilfully disobeyed, the recognised remedy is proceedings for contempt, conducted with the safeguards that such proceedings entail, and not a summary order for personal payment and attachment.
An order against the bank
20. The applicant seeks an alternative prayer directed at “the said bank” to release the funds, with interest, to the account of Orenge J. & Associates. The custodian of the fixed deposit is supposedly the NCBA Bank Kenya PLC. That bank is not a party (in any capacity) to these proceedings and has not been heard. It is important that before such an order is made, the bank need to be heard particularly when it is not apparent from the material before court that the envisaged joint account was ever opened and funds deposited in it. That does not suggest that the funds may not be recovered; all it means is that they can only be recovered by a procedure that brings the true custodian properly before the court.
27. For the reasons given, the application is dismissed; however, parties will bear their respective costs.
1. This ruling determines the applicant's Notice of Motion dated 3 July 2025. The motion is expressed to be brought under sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21), Article 159 of the Constitution of Kenya. It is supported by the affidavit of Julius Orenge, advocate, sworn on 3 July 2025, and by the grounds on its face.
2. Save for the first prayer (that the application be certified urgent and heard ex parte), which is spent, the motion seeks the following substantive orders. First, that pursuant to clause (4) of the orders issued on 21 May 2025, the firm of Kanyi J. & Company Advocates be compelled to furnish the firm of Orenge J. & Associates with the bank, branch and account number in which the fixed deposit of Kshs. 507,260/- was made, within seven (7) days. Secondly, that in default, the partners in the firm of Kanyi J. & Company Advocates be ordered to personally refund and pay Orenge J. & Associates the sum of Kshs. 507,260/- together with accrued interest from 29 January 2020, within seven (7) days. Thirdly, that in default of that refund, the assets and properties of the firm's partners, in person, be attached in recovery and satisfaction of that sum. Fourthly, and in the alternative, that upon the bank details being provided, an order does issue against the said bank to release the sum, with accrued interest, to the account of Orenge J. & Associates. Costs and such further orders are also sought.
3. The application is opposed. The respondent relies on the replying affidavit of Kioko Maundu, advocate, sworn on 15 July 2025, and the supplementary affidavit sworn on 29 October 2025. Both parties filed written submissions, which I have carefully considered.
Background
4. There is no dispute as to the background of the application. The dispute has its origin in Mombasa CMCC No. 1542 of 2016, in which judgment and a decree dated 22 March 2019 were entered. This miscellaneous application was filed on 10 March 2019 seeking leave to appeal out of time and a stay of execution of that judgment and decree. It was compromised by consent orders recorded on 30 September 2019. Pursuant to that compromise, a sum of Kshs. 507,260/- was to be held as security pending the intended appeal.
5. On 14 October 2019, the applicant's then advocates, KRK Advocates LLP, and the respondent's advocates, Kanyi J. & Company Advocates, jointly wrote to NCBA Group (then NIC/CBA) authorising the bank, in their joint names, “to open a joint account in the name of KRK Advocates LLP AND Kanyi J. & Company Advocates” and further “to hold the funds deposited in a fixed deposit account”. A copy of that letter, bearing the signatures of both firms, is on the record.
6. By an application dated 1 October 2024, the applicant sought the release of the security. On 21May 2025, this Honorable Court recorded consent orders by which, among other things, the firm of Orenge J. & Associates was granted leave to come on record for the applicant in place of KRK Advocates LLP, and it was directed that the security be released. Clause (4) of those orders provided:
“That the sum of Kshs 507,260/= deposited in a joint interest earning account between KRK Advocates and Kanyi J advocates be released to the respondent’s advocate, Orenge J & Associates”.
7. The consent fell through hencethe present motion. The applicant says that, despite the consent order and its written requests, the firm of Kanyi J. & Company Advocates has refused or failed to provide the account particulars necessary to secure release of the funds. The respondent, for its part, says that it neither holds the funds nor the particulars, that the true custodian is the bank, and that the orders now sought are, in any event, incompetent.
The Applicant's Case
8. Mr. Orenge deposes that the consent order of 21 May 2025 is clear and directs release of the security; that clause (4) has not been complied with; and that court orders ought not to be issued in vain. He states that despite repeated requests, Kanyi J. & Company Advocates have declined to furnish the bank, branch and account details of the joint account in which the fixed deposit was placed, and that his firm has itself engaged the bank in an effort to trace the account. He contends that the deposit was made and that the firm of Kanyi J. & Company Advocates, being a joint holder of the account, cannot feign ignorance of it. In the premises, he urges the court to grant the orders sought so as to bring the matter to an end.
The Respondent's Case
9. Mr. Maundu deposes, in substance, that the application is devoid of merit and an abuse of the process of the court. He states that the applicant, as the alleged depositor, together with its advocates, ought to be in possession of the evidence of the deposit, or to obtain it from its erstwhile advocates, KRK Advocates LLP; that the firm of Kanyi J. & Company Advocates never received the funds in its favour; and that, if any funds were held, they were held in a joint account between both firms of advocates, or in court, and not in the respondent's favour. In the supplementary affidavit, the respondent exhibits correspondence showing that it has written to, and visited, NCBA Bank in an attempt to obtain the very particulars sought, without success.
10. In its submissions, the respondent takes three principal objections. First, that these proceedings were disposed of by the consent orders of 30 September 2019 and the court is functus officio, save for incidental and consequential orders; and that the reliefs now sought are new, substantive and independent claims amounting to a fresh cause of action which must be pursued by way of a suit. Secondly, that the orders are directed against the firm of Kanyi J. & Company Advocates and its partners, who are not, and have never been, parties to these proceedings, and who cannot be condemned unheard without joinder and a fair hearing. Thirdly, that if the applicant genuinely believed its order had been disobeyed, the proper course was contempt of court, which it has not pursued. The respondent adds that it neither holds the funds nor the particulars, and that the existence of the funds has not been proved.
Issues for determination
11. Having considered the pleadings, the affidavits, the annextures and the rival submissions, the issues that emerge for determination are whether the court is functus officio or otherwise lacks jurisdiction to entertain the motion; whether the firm of Kanyi J. & Company Advocates can be compelled to disclose the account particulars; whether the partners of Kanyi J. & Company Advocates can be ordered to personally pay the sum allegedly deposited in the bank account or their personal properties can be attached for settlement of the sum; whether the bank can be compelled to disclose information regarding the alleged joint bank account and, last but least the appropriate order on costs
Analysis and Determination
(a) Jurisdiction and the doctrine of functus officio
12. The respondent's threshold objection is that, the substratum of the application having been exhausted by the consent orders of 30 September 2019, this court is functus officio. The doctrine was explained by the Court of Appeal in Telkom Kenya Limited v John Ochanda [2014] eKLR, where the court adopted the following statement:
“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… [O]nce 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 reviewed or varied by the decision maker.”
13. The same principle has long been settled in the Commonwealth. In Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A), the Appellate Division of South Africa stated the general rule that “once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it”. That statement, though not binding on this court, is instructive and accords with the position our courts have adopted ad the correct position of law on this issue.
14. The doctrine, however, does not bear the weight the respondent places on it. It bars a court from re-opening and re-deciding, on the merits, a matter it has finally determined. It does not divest a court of the jurisdiction to enforce, implement or give effect to its own subsisting orders, nor to correct a manifest error in expressing its own intention. Indeed, Telkom Kenya Limited v John Ochanda [2014] eKLR itself recognises exceptions for the correction of clerical errors and for orders that do not reflect the court's manifest intention. The order of 21 May 2025 is a subsisting order of this court directing release of the security. A court retains the power and the duty to ensure that its orders are not rendered nugatory. To that limited extent, the court is not functus officio.
15. Before leaving this head, I note there is a patent slip in clause (4). While clause (4) speaks of release “to the respondent’s advocate, Orenge J & Associates”, clause (2) of the very same order granted Orenge J. & Associates leave to come on record for the applicant, in place of KRK Advocates LLP. The description of Orenge J. & Associates as “the respondent’s advocate” is, therefore, an obvious error not reflecting the court's manifest intention, which was to release the security to Orenge J. & Associates as the advocates then coming on record. Consistent with the exception recognised in Telkom Kenya Limited v John Ochanda [2014] eKLR, I clarify that clause (4) is to be read as directing release to Orenge J. & Associates, advocates on record for the applicant.
16. It must, however, be borne in mind that the order of 21 May 2025 was a consent order. As the Court of Appeal held in Flora N. Wasike v Destimo Wamboko [1988] eKLR, a consent order is in the nature of a contract and “can only be set aside on the same grounds as would justify the setting aside of a contract, for example fraud, mistake or misrepresentation”. Neither party seeks to set aside the consent order; both are bound by it although its binding force runs only as far as its terms.
(b) compelling disclosure of the account particulars
17. On the evidence, there is no doubt that a joint mandate was given to the bank. The joint letter of 14 October 2019, signed by both KRK Advocates LLP and Kanyi J. & Company Advocates, authorised the opening of an account in their joint names and the holding of the funds on fixed deposit. To that extent, both firms of advocates ought to be aware of the particulars or details of the account in which the security was deposited.
18. Ordinarily, such information is accessible to the account holders and, therefore, it is rather intriguing that the information has not been availed to the respondent’s advocates if the bank account was opened and the deposit made as the consent order suggests. Needless to say, a court of law does not act in vain, and equally it does not compel the impossible, that is, lex non cogit ad impossibilia. I am not persuaded that it would be just to compel the respondent's advocates, to produce particulars which the applicant ought to be aware of or are in the bank’s custody. Proceeding on the assumption that a joint account was opened and the funds deposited, the proper custodian of the funds would be the bank, and it is to the bank that a coercive disclosure order would ultimately be directed.
Personal liability of, and attachment against, the partners of Kanyi J. & Company Advocates.
19. All I can say here is that the applicant's suggestion that the firm of Kanyi J. & Company Advocates has “played ignorance” does not translate into a personal monetary liability. If a party genuinely believes that a clear and unambiguous order of the court, directed at a named person, has been wilfully disobeyed, the recognised remedy is proceedings for contempt, conducted with the safeguards that such proceedings entail, and not a summary order for personal payment and attachment.
An order against the bank
20. The applicant seeks an alternative prayer directed at “the said bank” to release the funds, with interest, to the account of Orenge J. & Associates. The custodian of the fixed deposit is supposedly the NCBA Bank Kenya PLC. That bank is not a party (in any capacity) to these proceedings and has not been heard. It is important that before such an order is made, the bank need to be heard particularly when it is not apparent from the material before court that the envisaged joint account was ever opened and funds deposited in it. That does not suggest that the funds may not be recovered; all it means is that they can only be recovered by a procedure that brings the true custodian properly before the court.
27. For the reasons given, the application is dismissed; however, parties will bear their respective costs.