1. The appeal before me was commenced by way of a Memorandum of Appeal dated 31st April 2025. The said appeal seeks the following orders:-
i That the appeal be allowed;
ii Orders 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the ruling dated 26th March 2025 be set aside;
iii The matter be placed before the trial court for hearing and determination of the suit; and
iv Costs of the appeal be awarded to the appellant.
2. The instant appeal is merited and must succeed. The reason for this is that the trial court purported, in effect, to revisit its previous decision and vary it, when it had no jurisdiction to do so.
3. The foregoing is clear from the record of the Court below. It is evident that on 20th February 2025, the learned magistrate issued a ruling in respect of the Notice of Motion dated 3rd December 2024 in which she held at paragraph 15 as follows:-
“This is the interim application, and in order to serve the best interests of the children herein, I order that:-
i) The respondent is to continue remitting Kshs.6,000/- per month as upkeep for the children. The same shall be remitted on or before the 5th day of every month starting on the 5th March, 2025;
ii) The respondent is to continue paying the school fees for the children at their current school pending further orders. The respondent shall also pay for the madrassa fees;
iii) The applicant shall provide for the school-related expenses, which shall include school break time snacks, textbooks, exercise books and other minor needs, except for the school uniforms, which the respondent shall provide when needed; and
iv) In respect to the refund of the money spent totaling to Kshs.29,597/- the same shall be determined at the hearing of the main suit.
4. The court went on to rule that:-
“In respect to the application dated 22nd November 2024, the ruling shall be delivered on 26th March, 2025.”
5. It is clear that the learned magistrate had disposed of the application dated 3rd December 2024, and that the orders were to subsist until the suit before the court below was heard and determined on the merits. This is discernible from the fact that she indicated that maintenance would be payable monthly on the 5th day of each month, and that the issue of a refund of some money would be considered during the trial.
6. The foregoing notwithstanding, the learned magistrate, in a ruling delivered on 26th March 2025, stated as follows at paragraph 1:-
“This ruling is in respect of two applications; one dated 22nd November, 2024 by the plaintiff and the other dated 3rd December, 2024 by the defendant. For avoidance of confusion, I shall term the parties as plaintiff and defendant.”
The learned magistrate then reconsidered an application she had previously determined and issued orders that were at variance with her earlier decision. For example, she varied the sum payable as maintenance, contrary to her previous order, directed that the appellant would pay madrassa fees, and appeared to change her mind on whether the issue of a refund could ever be considered.
7. My view is that the court below could not purport to do so. Upon making her determination, the learned magistrate became functus officio in respect of the said application.
8. In the case of Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR), the Court of Appeal held that:-
“21. 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. It is a doctrine that has been recognized in the common law tradition from as long ago as the latter part of the 19th Century. In the Canadian case of Chandler Vs Alberta Association of Architects [1989] 2 S.C.R. 848, Sopinka J. traced the origins of the doctrines as follows (at p. 860);
22. The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for 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:
23. Where there had been a slip in drawing it up, and where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186. The Supreme Court in Raila Odinga v 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 a superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”
24. The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions, and these have been captured thus in Jersey Evening Post Ltd Vs Ai Thani [2002] JLR 542 at 550, also cited and applied by the Supreme Court;
25.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 decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”
9. What is clear from the above decision is that a court of law has only one bite at the cherry. Once it renders its final decision on an application or a suit, it cannot purport to reconsider the matter on the merits. In the case before the court below, the court, being functus officio, could not have issued the impugned orders. It lacked jurisdiction to do so.
10. The orders that the learned magistrate made in respect of the Notice of Motion dated 3rd December 2024 on 26th March 2025 were made without jurisdiction and cannot stand. This court is therefore justified in disturbing the trial court's finding. In the circumstances, the appeal succeeds against the decision of the court below; in particular, the orders it issued in paragraphs 31 (9) to (17) are set aside. The maintenance orders that will subsist are those made on 26th February 2026.
11. Each party shall bear his or her own costs of the appeal.
12. The matter is hereby remitted to the lower court for hearing by a magistrate with jurisdiction to hear children's matters, other than the Hon. Chepchirchir.
13. It is so ordered.
Dated and signed at Nairobi this 26th day of June 2026.
i That the appeal be allowed;
ii Orders 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the ruling dated 26th March 2025 be set aside;
iii The matter be placed before the trial court for hearing and determination of the suit; and
iv Costs of the appeal be awarded to the appellant.
2. The instant appeal is merited and must succeed. The reason for this is that the trial court purported, in effect, to revisit its previous decision and vary it, when it had no jurisdiction to do so.
3. The foregoing is clear from the record of the Court below. It is evident that on 20th February 2025, the learned magistrate issued a ruling in respect of the Notice of Motion dated 3rd December 2024 in which she held at paragraph 15 as follows:-
“This is the interim application, and in order to serve the best interests of the children herein, I order that:-
i) The respondent is to continue remitting Kshs.6,000/- per month as upkeep for the children. The same shall be remitted on or before the 5th day of every month starting on the 5th March, 2025;
ii) The respondent is to continue paying the school fees for the children at their current school pending further orders. The respondent shall also pay for the madrassa fees;
iii) The applicant shall provide for the school-related expenses, which shall include school break time snacks, textbooks, exercise books and other minor needs, except for the school uniforms, which the respondent shall provide when needed; and
iv) In respect to the refund of the money spent totaling to Kshs.29,597/- the same shall be determined at the hearing of the main suit.
4. The court went on to rule that:-
“In respect to the application dated 22nd November 2024, the ruling shall be delivered on 26th March, 2025.”
5. It is clear that the learned magistrate had disposed of the application dated 3rd December 2024, and that the orders were to subsist until the suit before the court below was heard and determined on the merits. This is discernible from the fact that she indicated that maintenance would be payable monthly on the 5th day of each month, and that the issue of a refund of some money would be considered during the trial.
6. The foregoing notwithstanding, the learned magistrate, in a ruling delivered on 26th March 2025, stated as follows at paragraph 1:-
“This ruling is in respect of two applications; one dated 22nd November, 2024 by the plaintiff and the other dated 3rd December, 2024 by the defendant. For avoidance of confusion, I shall term the parties as plaintiff and defendant.”
The learned magistrate then reconsidered an application she had previously determined and issued orders that were at variance with her earlier decision. For example, she varied the sum payable as maintenance, contrary to her previous order, directed that the appellant would pay madrassa fees, and appeared to change her mind on whether the issue of a refund could ever be considered.
7. My view is that the court below could not purport to do so. Upon making her determination, the learned magistrate became functus officio in respect of the said application.
8. In the case of Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR), the Court of Appeal held that:-
“21. 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. It is a doctrine that has been recognized in the common law tradition from as long ago as the latter part of the 19th Century. In the Canadian case of Chandler Vs Alberta Association of Architects [1989] 2 S.C.R. 848, Sopinka J. traced the origins of the doctrines as follows (at p. 860);
22. The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for 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:
23. Where there had been a slip in drawing it up, and where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186. The Supreme Court in Raila Odinga v 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 a superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”
24. The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions, and these have been captured thus in Jersey Evening Post Ltd Vs Ai Thani [2002] JLR 542 at 550, also cited and applied by the Supreme Court;
25.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 decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”
9. What is clear from the above decision is that a court of law has only one bite at the cherry. Once it renders its final decision on an application or a suit, it cannot purport to reconsider the matter on the merits. In the case before the court below, the court, being functus officio, could not have issued the impugned orders. It lacked jurisdiction to do so.
10. The orders that the learned magistrate made in respect of the Notice of Motion dated 3rd December 2024 on 26th March 2025 were made without jurisdiction and cannot stand. This court is therefore justified in disturbing the trial court's finding. In the circumstances, the appeal succeeds against the decision of the court below; in particular, the orders it issued in paragraphs 31 (9) to (17) are set aside. The maintenance orders that will subsist are those made on 26th February 2026.
11. Each party shall bear his or her own costs of the appeal.
12. The matter is hereby remitted to the lower court for hearing by a magistrate with jurisdiction to hear children's matters, other than the Hon. Chepchirchir.
13. It is so ordered.
Dated and signed at Nairobi this 26th day of June 2026.