The 3rd Defendant/Respondent raised a Preliminary Objection to the Proposed Interested Parties’ Application dated 18th July, 2025 at the first instance on the following grounds:
1. That the Honourable Court is functus officio in this matter and has no jurisdiction to hear the application or issue any orders.
2. That the court file was closed upon delivery of Judgment on 27th March, 2025 and the suit cannot be re-opened through the instant application.
3. That the Applicants are not parties to the suit and cannot therefore seek any substantive orders.
4. That Order 1 of the Civil Procedure Rules does not recognize Interested Parties in civil litigation, and the rules do not stipulate any pleadings to be filed by Interested Parties. Parties are either Plaintiff, Defendant or Third Party.
This court has considered the Preliminary Objection and submissions therein. According to the Black Law Dictionary a Preliminary Objection is defined as being;
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
The above legal preposition has been made in the case of Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd. (1969) E.A. 696 where the court held that;
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurer 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 if what is sought in the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”
In the case of Attorney General & Another vs Andrew Mwaura Githinji & another (2016) eKLR the court outlined the scope and nature of preliminarily objection as;
(i) A preliminary objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.
(ii) A preliminary objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and
(iii) The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.
It is trite law that a preliminary objection can be brought at any time at least before the final conclusion of the case. Ideally, all facts remaining constant, it should be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter. The 3rd Defendant has raised the issue of functus officio. I find that the filed preliminary objection by the 3rd Defendant herein was properly brought before the court.
The 3rd Respondent/ Applicant submitted that the Applicant had an opportunity to seek joinder during the pendency of the suit. That the present application is meant to delay and to indirectly reopen the suit without lodging an appeal or an application for review.
In the case of Telkom Kenya Ltd vs John Ochanda (suing on his behalf and on behalf of 996 former Employees of Telkom Kenya Ltd (supra), the Court of Appeal held as follows on the functus officio doctrine;
“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--
The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions. ---”
The Supreme Court of Kenya in the case of Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others (2013) eKLR, 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 which reads;
“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.”
Section 99 of the Civil Procedure Act provides exceptions to the doctrine of functus officio in the following terms-
“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”
I have perused the court file and find that on 27th March, 2025 judgement was delivered in the said matter by Justice Christine Ochieng. That by an application dated 17th June 2025 the Applicants seek inter alia to be enjoined in this suit. That they were not aware of the suit until they were served with the judgement. That the entire suit to be set aside and the matter be heard afresh. I concur with the 3rd Respondents submissions that the Applicants ought to appeal the said judgement and asking this court to set aside the entire trial is asking this court to reopen the matter and is an abuse of the court process. This court is functus officio.
It is clear that the doctrine of functus officio does not bar a court from entertaining a case it has already decided but prevents it from revisiting the matter on a merit-based re-engagement once final judgment has been entered as is the case herein. However, having discharged its duty on this suit the court is therefore functus officio, defined in Black's Law Dictionary, Ninth Edition as “having performed his or her office (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.” In the circumstances, the court is wary of the Applicants’ invitation to re-engage with this dispute. Having found that this court is functus officio I find that the preliminary objection is merited and I strike out the said application with costs.
It is so ordered.
1. That the Honourable Court is functus officio in this matter and has no jurisdiction to hear the application or issue any orders.
2. That the court file was closed upon delivery of Judgment on 27th March, 2025 and the suit cannot be re-opened through the instant application.
3. That the Applicants are not parties to the suit and cannot therefore seek any substantive orders.
4. That Order 1 of the Civil Procedure Rules does not recognize Interested Parties in civil litigation, and the rules do not stipulate any pleadings to be filed by Interested Parties. Parties are either Plaintiff, Defendant or Third Party.
This court has considered the Preliminary Objection and submissions therein. According to the Black Law Dictionary a Preliminary Objection is defined as being;
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
The above legal preposition has been made in the case of Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd. (1969) E.A. 696 where the court held that;
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurer 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 if what is sought in the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”
In the case of Attorney General & Another vs Andrew Mwaura Githinji & another (2016) eKLR the court outlined the scope and nature of preliminarily objection as;
(i) A preliminary objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.
(ii) A preliminary objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and
(iii) The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.
It is trite law that a preliminary objection can be brought at any time at least before the final conclusion of the case. Ideally, all facts remaining constant, it should be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter. The 3rd Defendant has raised the issue of functus officio. I find that the filed preliminary objection by the 3rd Defendant herein was properly brought before the court.
The 3rd Respondent/ Applicant submitted that the Applicant had an opportunity to seek joinder during the pendency of the suit. That the present application is meant to delay and to indirectly reopen the suit without lodging an appeal or an application for review.
In the case of Telkom Kenya Ltd vs John Ochanda (suing on his behalf and on behalf of 996 former Employees of Telkom Kenya Ltd (supra), the Court of Appeal held as follows on the functus officio doctrine;
“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--
The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions. ---”
The Supreme Court of Kenya in the case of Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others (2013) eKLR, 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 which reads;
“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.”
Section 99 of the Civil Procedure Act provides exceptions to the doctrine of functus officio in the following terms-
“Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”
I have perused the court file and find that on 27th March, 2025 judgement was delivered in the said matter by Justice Christine Ochieng. That by an application dated 17th June 2025 the Applicants seek inter alia to be enjoined in this suit. That they were not aware of the suit until they were served with the judgement. That the entire suit to be set aside and the matter be heard afresh. I concur with the 3rd Respondents submissions that the Applicants ought to appeal the said judgement and asking this court to set aside the entire trial is asking this court to reopen the matter and is an abuse of the court process. This court is functus officio.
It is clear that the doctrine of functus officio does not bar a court from entertaining a case it has already decided but prevents it from revisiting the matter on a merit-based re-engagement once final judgment has been entered as is the case herein. However, having discharged its duty on this suit the court is therefore functus officio, defined in Black's Law Dictionary, Ninth Edition as “having performed his or her office (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.” In the circumstances, the court is wary of the Applicants’ invitation to re-engage with this dispute. Having found that this court is functus officio I find that the preliminary objection is merited and I strike out the said application with costs.
It is so ordered.