' Background and Introduction
1. This Court delivered a judgment in this matter on 19th July 2024, dismissing the appeal for lack of merit and upholding the judgment of the Tribunal dated 5th May 2023. Subsequently, the appellant filed an application dated 27th March 2025, seeking to review and set aside the said judgment. The Commissioner responded by way of a Notice of Preliminary Objection, asserting that the Court was functus officio after delivering its judgment. This Ruling addresses the preliminary objection as well as the said application.
Analysis and Determination
2. I have read and considered the application, responses including the objection and written submissions filed by the parties. The first and central question before me is: when does a Court become functus officio? I align myself with the decision of this Court (Cherere, J) in Kabansora Millers Ltd v Nyangena [2025] KEHC 4754 (KLR) where the Court confirmed that
“the doctrine of functus officio dictates that once a court has rendered its final decision, it ceases to have jurisdiction over the matter, save for specific exceptions such as review or correction of clerical or arithmetical errors”.
3. In reaching this conclusion, the Court cited authority from the Supreme Court in Odinga v Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling) where the Supreme Court held that once a court delivers its judgment, it becomes functus officio and cannot review or reopen the matter unless provided under specific provisions of the law to ensure legal certainty and justice.
4. Addressing a similar situation, the Court in Kabansora Millers Ltd articulated the following regarding applications for review:
“In the present case, the Respondent has invoked Order 45, which provides for review under specific grounds, including the discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason. In light of this, the court is not necessarily functus officio, and may consider the application on its merits within the confines of the review jurisdiction”.
5. It is undisputed that the application filed on 27th March 2025 is made under the provisions of Order 45 Rule 1 of the Civil Procedure Rules, which provides the grounds and procedure for seeking review of a court judgment. The wording of the CPR anticipates that, although a court’s final decision generally renders it functus officio, there remains room for the court to revisit and review its own decisions under specific circumstances as supported by jurisprudence cited.
6. Given this contextual backdrop and the explicit provisions of Order 45, the preliminary objection that the Court is functus officio at this stage must fail. The Court is not yet barred from reviewing the matter, and I am inclined to proceed to consider the application on its merits.
7. The applicant contends that there is an error on the face of the record, and contends that the Court erroneously believed that the demand notice dated 23rd April 2021 had been served, whereas in fact, it was not served.
8. I have reviewed the impugned judgment. I note that at paragraphs 21 and 22, the Court explicitly addressed and considered the allegation that the demand had not been served, as argued by the appellant. The pertinent paragraphs state:
“On 2nd June 2021, the respondent wrote to the appellant notifying it that it was required to pay the taxes demanded in the demand notice of 23rd April 2021. On 3rd June 2021, the appellant responded and informed the respondent that it had not received the demand. It however confirmed that it received a desk audit findings for Kshs. 8,589,213.00 dated 26th March 2021 which they responded to on 30th March 3031 and enclosed all transaction documents. 22. Through its letter of 5th June 2021, the appellant reiterated that it had not received the demand and requested the respondent to release the caveat put on the entry to allow the release of the consignment and avoid accruing demurrages”.
9. In light of this, I find that the Court correctly considered the matter regarding service of the demand notice and, therefore, there is no basis to warrant a review of the judgment on this ground.
Conclusion
10. Having examined the grounds for review and the Court’s considerations, I find that the application dated 27th March 2025 does not meet the threshold for review as set out under Order 45. Accordingly, the Notice of Preliminary Objection is hereby dismissed, and so is the application for review. Each party shall bear their own costs.
'
1. This Court delivered a judgment in this matter on 19th July 2024, dismissing the appeal for lack of merit and upholding the judgment of the Tribunal dated 5th May 2023. Subsequently, the appellant filed an application dated 27th March 2025, seeking to review and set aside the said judgment. The Commissioner responded by way of a Notice of Preliminary Objection, asserting that the Court was functus officio after delivering its judgment. This Ruling addresses the preliminary objection as well as the said application.
Analysis and Determination
2. I have read and considered the application, responses including the objection and written submissions filed by the parties. The first and central question before me is: when does a Court become functus officio? I align myself with the decision of this Court (Cherere, J) in Kabansora Millers Ltd v Nyangena [2025] KEHC 4754 (KLR) where the Court confirmed that
“the doctrine of functus officio dictates that once a court has rendered its final decision, it ceases to have jurisdiction over the matter, save for specific exceptions such as review or correction of clerical or arithmetical errors”.
3. In reaching this conclusion, the Court cited authority from the Supreme Court in Odinga v Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling) where the Supreme Court held that once a court delivers its judgment, it becomes functus officio and cannot review or reopen the matter unless provided under specific provisions of the law to ensure legal certainty and justice.
4. Addressing a similar situation, the Court in Kabansora Millers Ltd articulated the following regarding applications for review:
“In the present case, the Respondent has invoked Order 45, which provides for review under specific grounds, including the discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason. In light of this, the court is not necessarily functus officio, and may consider the application on its merits within the confines of the review jurisdiction”.
5. It is undisputed that the application filed on 27th March 2025 is made under the provisions of Order 45 Rule 1 of the Civil Procedure Rules, which provides the grounds and procedure for seeking review of a court judgment. The wording of the CPR anticipates that, although a court’s final decision generally renders it functus officio, there remains room for the court to revisit and review its own decisions under specific circumstances as supported by jurisprudence cited.
6. Given this contextual backdrop and the explicit provisions of Order 45, the preliminary objection that the Court is functus officio at this stage must fail. The Court is not yet barred from reviewing the matter, and I am inclined to proceed to consider the application on its merits.
7. The applicant contends that there is an error on the face of the record, and contends that the Court erroneously believed that the demand notice dated 23rd April 2021 had been served, whereas in fact, it was not served.
8. I have reviewed the impugned judgment. I note that at paragraphs 21 and 22, the Court explicitly addressed and considered the allegation that the demand had not been served, as argued by the appellant. The pertinent paragraphs state:
“On 2nd June 2021, the respondent wrote to the appellant notifying it that it was required to pay the taxes demanded in the demand notice of 23rd April 2021. On 3rd June 2021, the appellant responded and informed the respondent that it had not received the demand. It however confirmed that it received a desk audit findings for Kshs. 8,589,213.00 dated 26th March 2021 which they responded to on 30th March 3031 and enclosed all transaction documents. 22. Through its letter of 5th June 2021, the appellant reiterated that it had not received the demand and requested the respondent to release the caveat put on the entry to allow the release of the consignment and avoid accruing demurrages”.
9. In light of this, I find that the Court correctly considered the matter regarding service of the demand notice and, therefore, there is no basis to warrant a review of the judgment on this ground.
Conclusion
10. Having examined the grounds for review and the Court’s considerations, I find that the application dated 27th March 2025 does not meet the threshold for review as set out under Order 45. Accordingly, the Notice of Preliminary Objection is hereby dismissed, and so is the application for review. Each party shall bear their own costs.
'