1. What is before me for determination is the appellants’/applicants’ Notice of Motion dated 14th July 2026, expressed to be brought under sections 1A, 1B and 3A of the Civil Procedure Act, Article 159 of the Constitution and all other enabling provisions of the law. It is supported by the affidavit of DURAN HUSSEIN MUDORE, the 2nd appellant and a director of the 1st appellant, sworn on 14th July 2026, and by his further affidavit sworn on 26th July 2026; and it is opposed by Grounds of Opposition dated 22nd July 2026 taken out under Order 51 Rule 14 of the Civil Procedure Rules, 2010. The Motion was filed barely a fortnight after this Court had delivered final judgment in the appeal, and it invites the Court to say what that Judgment means, and what it leaves to be worked out, in the period before the question it remitted has been answered.
2. The application has been canvassed by way of written submissions the respondents filed Written Submissions dated 6th August 2026, the applicants replied by Written Submissions in Rebuttal dated 10th August 2026, and the respondents answered by Further Submissions dated 13th August 2026, expressed to be confined to the new matters and authorities raised in the rebuttal. I have read and considered the Notice of Motion, the supporting and further affidavits together with their annexures, the Grounds of Opposition, all three sets of submissions and the authorities cited in each, and the Judgment of 30th June 2026, which I have re-read in its entirety for purposes of this ruling.
The Applicants’ case
3. The substantive prayers sought in the application fall, on analysis, into three distinct groups, and it is convenient to describe them in that way rather than seriatim, because the group to which a prayer belongs determines the jurisdictional question it raises. The first group is corrective. By prayer 3 the applicants ask the Court to recall and clarify the Judgment so as accurately to reflect the parties to the appeal following the order of 30th April 2026 striking out the 3rd, 5th, 9th and 17th Respondents; and by prayer 4 they ask the Court to clarify the Judgment so as to reflect that the record comprised fourteen (14) leases and not nineteen (19) as stated in the Judgment, so that the remitted proceedings before the Tribunal are undertaken only in respect of the leases properly forming the subject matter of the appeal.
4. The second group is regulatory. By prayer 5 the applicants ask the Court to issue such consequential and transitional directions as are necessary to clarify the legal basis and consequences of the respondents’ continued occupation of the suit premises during the intervening period, and to define, regulate and safeguard the applicants’ proprietary, possessory and reversionary rights, including their entitlement to the payment, receipt and recovery of rent and/or mesne profits, pending the Tribunal’s determination. By prayers 6 and 8 they ask the Court to invoke its residual jurisdiction and to issue such further and/or consequential orders as may be necessary to ensure the full, effective and practical implementation of the Judgment. By prayer 2 they seek, pending the hearing and determination of the application, an order restraining the respondents from subletting, conducting structural changes and/or receiving any goodwill from third parties not party to the initial lease agreements. The third group consists of a single prayer: by prayer 7 the applicants ask that the matter remitted to the Tribunal be heard by a member of the Tribunal other than Hon. Patricia May, whose orders were the subject of the appeal.
5. The grounds on the face of the Motion and the deposition in support may be shortly stated. The applicants say that while the Court set aside the interim injunctive orders which had restrained them from implementing their decision rejecting renewal of the leases, it did not issue consequential or transitional directions regulating the legal position of the parties pending the Tribunal’s determination. The setting aside, it is said, restored the applicants’ proprietary rights but left unresolved the manner in which those rights may lawfully be exercised in the interim: if they proceed to recover possession and the Tribunal thereafter finds the tenancies to be controlled, they face the risk that their actions will be impugned as premature; while if they hold their hand, the respondents remain in occupation notwithstanding that the restraining orders have been set aside. They further depose that the respondents have continued to sublet and part with possession, receive goodwill, undertake structural alterations and change the user of the premises, to the prejudice of the applicants’ reversionary interests, and that a legal vacuum has thereby arisen which is likely to generate further disputes and a multiplicity of proceedings. They are careful to state, at paragraphs 14, 26 and 29 of the supporting affidavit, that they do not seek to reopen, challenge or vary the merits of the Judgment, and that what is sought is intended only to render the Judgment complete, self-executing and capable of practical implementation. In support of the Court’s power to do so they invoke its residual jurisdiction, relying upon Mawji v Arusha General Store [1970] EA 137 , Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR and the test articulated in Kamau James Gitutho & 3 Others v Multiple ICD (K) Limited & Another (Civil Application 2 of 2019) [2019] eKLR , and drawing attention to the fact that no further appeal lies from this Judgment by virtue of section 15(4) of Cap. 301.
6. By his further affidavit sworn on 26th July 2026 the 2nd applicant joined issue with the Grounds of Opposition and annexed, as exhibit “DHM1”, a copy of the Ruling and Orders of the Business Premises Rent Tribunal (Hon. Patricia May, Member) dated 10th June 2026 in BPRT Case No. E227 of 2026, the effect of which I have summarised above. He deposes that although dated 10th June 2026, the Ruling and Orders were uploaded onto the Judiciary Case Tracking System after the present application had been filed, and came to the applicants’ attention only thereafter.
7. The applicants deploy that Ruling for three purposes. They say it demonstrates that the learned Member expressly acknowledged that the question of the Tribunal’s jurisdiction was pending determination before this Court and yet proceeded to assume jurisdiction and issue substantive interlocutory orders regulating the payment of rent and the parties’ rights and obligations. They say it confirms the very vacuum of which they complain, since the Tribunal itself found it necessary to regulate the parties’ position, and that the need for such regulation subsists after the Judgment. And they say that, absent the consequential directions sought, they would be left with no alternative but to appeal against the Ruling of 10th June 2026 upon the same jurisdictional issue which this Court has already conclusively determined, occasioning a multiplicity of proceedings, delay and additional expense. They further rely upon it, at paragraph 11 of the further affidavit, as showing that the learned Member has now on two separate occasions expressed concluded views on the very issue remitted for determination.
The Respondents’ case
8. The respondents oppose the application upon eleven Grounds of Opposition dated 22nd July 2026, taken out under Order 51 Rule 14 of the Civil Procedure Rules, 2010. Reduced to its substance, their case may be grouped under five heads. First, and centrally, that this Court, having rendered final judgment and remitted the matter, discharged its appellate mandate and is functus officio. Secondly, that the application is in truth an application for review masquerading as a request for clarification, none of the statutory preconditions for review having been pleaded or proved. Thirdly, that save for prayers 3 and 4 the application is an abuse of the process of the Court, calculated to resurrect before a forum which has discharged itself the very injunctive and occupational reliefs the Court declined, so as to harass the respondents and to delay the resumed hearing before the Tribunal. Fourthly, that prayer 7 is scandalous, frivolous, vexatious and an unconstitutional attempt to forum-shop which offends Article 160(1) of the Constitution. Fifthly, that the plea for transitional directions is superfluous and misdirected, because an active and legally binding framework already governs rental receipts by virtue of the Tribunal’s Ruling and Orders of 10th June 2026, and the assertion that the respondents occupy the suit premises without paying rent is, they say, factually false and conceals those subsisting orders.
9. They concede prayers 3 and 4, which they accept seek to rectify purely formal administrative records so as to reflect the order of 30th April 2026 and to correct the count of leases from nineteen to fourteen, and they ask that any order be limited strictly to that correction, that the balance of the application be dismissed with costs under section 27 of the Civil Procedure Act, and that the remitted file be transmitted immediately to the Tribunal for priority hearing on evidence.
The Applicants’ Submissions
10. The applicants filed Written Submissions in Rebuttal dated 10th August 2026 in answer to the objections taken in the Grounds of Opposition and amplified in the respondents’ Written Submissions dated 6th August 2026, to which I come in the next section. Those submissions frame five issues. They do not seek to re-argue the application at large; they are directed at the objections taken by the respondents. First, on functus officio, the applicants accept the principle of finality “except in special cases.” The circumstances now confronting the parties, they say, arose from the appellate determination itself and could not, in their present form, have been raised before the Judgment was delivered. The Motion is brought in the same proceedings and before the same Court, and the mischief at which Pop-In is directed piecemeal litigation and the resurrection in a fresh suit of matters properly belonging to an earlier one is therefore absent.
11. Secondly, and more substantially, the applicants advance an affirmative formulation of the doctrine drawn from In re Estate of the Late Joab Odero Odero (Deceased) (Succession Cause 227 of 1993) [2025] KEHC 6404 (KLR) and Kenya Broadcasting Corporation v Geoffrey Wakio [2019] eKLR . From the former they take the proposition that the doctrine does not prevent a court from taking further proceedings towards facilitating or supplementing its own processes, so long as those proceedings are not merit based, and that proceedings are fully concluded only when the judgment or order has been perfected. From the latter they take the proposition that the doctrine does not foreclose proceedings which are incidental to, or the natural consequence of, the final decision, and that in determining whether a court is functus one looks to the order or relief which is being sought. Upon that footing they examine each prayer in turn and submit that prayer 2 is interlocutory and preservatory; that prayers 3 and 4 are corrective; that prayer 5 is consequential, transitional and directed at implementation; that prayer 7 concerns only the manner in which the remitted proceedings are to be conducted; and that prayer 9 concerns costs none of them, they say, requiring the Court to revisit, re-evaluate or determine afresh anything the Judgment decided. Thirdly, on residual jurisdiction, they submit that the test is “two-fold”: it assists the Court first in determining whether the exceptional jurisdiction is attracted, and then whether it ought to be exercised; and the fact that the Court of Appeal declined, on the facts before it, to exercise the jurisdiction does not convert the considerations it articulated into a rule that the jurisdiction may only be refused. They further submit that the absence of a further appeal by reason of section 15(4) of Cap. 301 is one of the circumstances in which the jurisdiction may be exercised, and is accordingly a factor favouring rather than barring its exercise. Their complaint, they emphasise, is not of uncertainty simpliciter but of asymmetry: that following the setting aside of the interim orders the parties have not been left in positions of equal uncertainty, one party continuing to enjoy occupation and the incidents flowing from it while the other bears the corresponding prejudice for an indeterminate period.
12. Fourthly, on review and abuse of process, they say that they have not moved this Court under Order 45 of the Civil Procedure Rules, that the grounds governing review are therefore not the measure of this application, and that the Court must determine the Motion according to the nature and substance of the reliefs actually sought rather than according to a characterisation placed upon them by an opponent. On abuse, they address Sarak v Kotoye (1992) 9 NWLR (Pt. 264) 156 , a decision of the Supreme Court of Nigeria, and submit that none of the circumstances there identified as instances of abuse is present: there is no multiplicity of actions between the same parties on the same subject matter, no parallel proceeding in another forum, no duplication of similar processes in respect of the same right, and there is a legal basis for the process invoked. Fifthly, they raise a new issue, not taken in their principal submissions, which they frame as whether the Tribunal could properly exercise its statutory powers pending determination of its jurisdiction. Relying upon Republic v Business Premises Rent Tribunal & Another Ex parte Albert Kigera Karume [2015] KEHC 6921 (KLR) and, through it, upon Re Hebtulla Properties Ltd. [1979] KLR 96 , they submit that the Tribunal is a creature of statute whose powers under section 12 of Cap. 301 are exercisable only in relation to controlled tenancies; that at the date of the orders of 10th June 2026 the question whether these tenancies were controlled was pending before this Court and the leases had in any event expired by effluxion of time; and that in directing the deposit of rent and restraining the applicants from treating the respondents as being in default, the Tribunal gave effect to an assumed legal relationship and inverted the proper order of jurisdictional inquiry.
The Respondents’ submissions
13. In their submissions dated 6th August 2026, six issues are framed for determination. They also develop the five heads of opposition as follows. First, and centrally, they contend that jurisdiction is everything and that a court without it must down its tools, invoking the familiar admonition in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 , and they rely upon Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) (Civil Appeal 60 of 2013) [2014] KECA 600 (KLR) and upon Pop-In (Kenya) Ltd & 3 Others v Habib Bank AG Zurich [1990] KECA 62 (KLR) for the proposition that there must be an end to litigation and that a party may not reopen a concluded subject of litigation.
14. Secondly, they submit that the application is in truth a review masquerading as a request for clarification, and that none of the statutory preconditions in section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules discovery of new and important matter, an error apparent on the face of the record, or any other sufficient reason has been pleaded or proved. They rely upon National Bank of Kenya Ltd v Njau (Civil Appeal 211 of 1996) [1997] KECA 71 (KLR) for the settled propositions that an error justifying review must be self-evident and not require elaborate argument, that a wrong conclusion of law is a ground of appeal and not of review, and that an issue hotly contested cannot be reviewed by the very court that adjudicated upon it. Thirdly, they contend that, save for prayers 3 and 4, the application is an abuse of the process of the Court and liable to be struck out, relying upon Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others, Civil Appeal No. 25 of 2002 [2009] eKLR and Energy Regulatory Commission v John Sigura Otido [2021] KECA 1060 (KLR) . The applicants, they say, seek to resurrect before a forum that has discharged itself the very injunctive and occupational reliefs the Court declined, in order to harass the respondents and delay the resumed hearing before the Tribunal.
15. Fourthly, they contend that prayer 7 is scandalous, frivolous, vexatious and an unconstitutional attempt to forum-shop which offends Article 160(1) of the Constitution. Relying on Rai & 3 Others v Rai & 4 Others (Petition 4 of 2012) [2013] KESC 20 (KLR) , and through it on Metropolitan Properties Co. (FGC) Ltd v Lannon [1969] 1 QB 577 and Porter v Magill [2002] 2 AC 357 , they submit that bias must be established on objective facts as perceived by a fair-minded observer, and that the applicants’ grievance stems solely from adverse interlocutory rulings, which do not equate to judicial bias. Fifthly, on the question of transitional directions, they contend that the plea is superfluous and misdirected because an active, legally binding framework already governs rental receipts: by a Ruling and resultant Orders issued on 10th June 2026 in BPRT Case No. E227 of 2026 the Tribunal permitted the tenants to deposit their monthly rent directly into its official bank account, deemed such deposit to constitute full and lawful performance of their rental obligations, and restrained the landlords from alleging rent arrears, issuing default notices, levying distress or executing evictions for periods covered by the deposits. The assertion that the respondents occupy without paying rent is, they say, factually false and deliberately conceals those subsisting orders.
16. The respondents answered the applicants’ rebuttal by Further Submissions dated 13th August 2026, confined to the matters there raised. On Pop-In, they say that the “special cases” there contemplated are matters which could not, with reasonable diligence, have been raised in the proceedings already concluded, and not matters which a party wishes it could now raise because it is dissatisfied with the practical consequences of a judgment properly obtained. On Kenya Broadcasting Corporation v Geoffrey Wakio (Supra) they say the authority is self-defeating in the applicants’ hands: what the Court of Appeal there held was that a further order made after the court had already dispensed with the merits and made its orders was null and void, and that, they submit, is the precise vice here, prayers 2, 5, 6 and 8 inviting fresh findings on subletting, structural alteration, the collection of goodwill and the quantum of rent or mesne profits, none of which was adjudicated by the Judgment. On In re Estate of the Late Joab Odero Odero (Supra) they say the case is readily distinguishable: the application there sought to give effect to an order which had already, in clear and unqualified terms, directed the respondent to vacate the suit property and which he had refused to obey, the court being asked only to realise a decretal term. No equivalent decretal term, they say, exists here, the Judgment containing no operative term regulating subletting, structural works, goodwill or rent, for the simple reason that no such term was ever sought or argued at the hearing of the appeal. They do not dispute that the three considerations operate together, nor that satisfaction of all three may in an appropriate case justify the exercise of the jurisdiction; their point is narrower, namely that on the facts of this application the first and second limbs are not met, so that the third cannot on its own carry the applicants across the threshold. On review, they say they never contended that the Motion formally invokes Order 45; their submission was, and remains, that it is a review masquerading as something else, its substance rather than its form bringing it within the mischief which Order 45 and section 80 of the Civil Procedure Act exist to control. On abuse of process, they observe that Sarak v Kotoye (Supra) was not an authority relied upon by them at all, and that their case rested upon Muchanga Investments Ltd (Supra) and Energy Regulatory Commission v John Sigura Otido (Supra) neither of which is addressed anywhere in the rebuttal, so that their submission on abuse stands, as they put it, unanswered.
17. On asymmetry, they say that the parties’ relationship pending the Tribunal’s determination is not left ungoverned: it is regulated by the Tribunal’s own Ruling of 10th June 2026, which requires the respondents to deposit rent with the Tribunal and correspondingly restrains the applicants from treating them as being in default; the complaint is in substance dissatisfaction with the terms of that framework, properly agitated before the Tribunal or, if appropriate, by way of judicial review of its Ruling. On the assertion that the Ruling was uploaded onto the Case Tracking System long after 10th June 2026, they say that, taken at its highest, it establishes no more than a delay in the administrative upload of a ruling, which is commonplace and unremarkable and says nothing about the date on which the Ruling was in fact delivered or the reasoning it recorded; and that if what is intended is a suggestion that the Ruling was antedated or otherwise irregularly issued, that is a serious allegation which has not been particularised, is unsupported by any affidavit evidence, and cannot be inferred from an upload timestamp. They add that a member who, faced with a landlord’s refusal to accept rent, directs that it be deposited into the Tribunal’s custodial account protects the landlord’s entitlement to receive rent while protecting the tenants from unlawful eviction, and is acting in a manner even-handed on its face, so that a fair-minded and informed observer would be less, not more, likely to apprehend bias; and that if another member is desired, the requisite application for recusal ought to be made to the Tribunal rather than similar orders sought from a superior court to bind it. Finally, on the applicants’ new fifth issue, it is submitted that the Tribunal, as a subordinate court within Article 169(1)(d) of the Constitution, has power under section 63(c) of the Civil Procedure Act to grant temporary injunctions; that it is commonplace, and unobjectionable, for a court or tribunal whose jurisdiction is under challenge to make interim, protective directions preserving the status quo pending resolution of that challenge without thereby assuming or prejudging the jurisdictional question; and that the orders of 10th June 2026 did no more than establish a custodial arrangement for rent pending the very determination which the Judgment afterwards remitted. They pray that prayers 1, 2, 5, 6, 7, 8 and 9 be dismissed with costs, and that any order arising from the application be limited strictly to the administrative rectifications conceded under prayers 3 and 4.
Analysis and Determination
18. Having considered the pleadings, the submissions and the authorities, the following eight issues arise for determination:
(i) What jurisdiction, if any, this Court retains over the Judgment delivered on 30th June 2026, and what is the scope of that jurisdiction, having regard in particular to the residual jurisdiction invoked and to section 15(4) of Cap. 301;
(ii) Whether the corrective relief sought by prayers 3 and 4 ought to be granted;
(iii) Whether, and to what extent, this Court may make the consequential and transitional directions sought by prayers 2, 5, 6 and 8;
(iv) What effect, if any, the Ruling and Orders of the Tribunal dated 10th June 2026 have upon the disposal of this application;
(v) Whether it is open to this Court, upon this application, to pronounce upon the competence of the Tribunal to make the interim directions it made on 10th June 2026 while the question of its jurisdiction was pending before this Court;
(vi) Whether prayer 7, that the remitted matter be heard by a member of the Tribunal other than Hon. Patricia May, ought to be granted;
(vii) Whether the application, save for prayers 3 and 4, constitutes an abuse of the process of the Court; and
(viii) Who should bear the costs of the application.
The jurisdiction of the Court after judgment
19. When a court has heard and finally determined the matter before it and has delivered judgment, its seisin of that matter comes to an end. It becomes functus officio, having discharged the office committed to it, and it thereafter has no general power to alter, add to, supplement or reconsider what it has decided. The rule is not a technicality. It is an incident of the finality of judicial decisions, without which litigation would have no terminus and no judgment would be safe to act upon. The principle is well settled. In Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) (Civil Appeal 60 of 2013) [2014] KECA 600 (KLR) the Court of Appeal, adopting the analysis in Chandler v Alberta Association of Architects [1989] 2 S.C.R. 848 and the passage from Jersey Evening Post Ltd v Al Thani [2002] JLR 542 cited by the Supreme Court in Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR , explained that a court is functus when it has performed all its duties in a particular case; that the doctrine bars a merit-based decisional re-engagement with a case once final judgment has been entered; and that where what is sought goes beyond the recognised exceptions, the court is wrong to entertain it. The Court there identified the exceptions as a slip in drawing up the judgment and an error in expressing the manifest intention of the court, and observed that the grounds on which the application before it was premised betrayed the serious adjudicative exercise the court was being called upon to perform. Those observations have a distinctly familiar ring in the present application.
20. The applicants do not dispute that principle. What they say, drawing upon Kenya Broadcasting Corporation v Geoffrey Wakio [2019] eKLR and In re Estate of the Late Joab Odero Odero (Deceased) [2025] KEHC 6404 (KLR) , is that the doctrine is not to be understood as barring every engagement by a court with a case it has decided; that what it bars is a merit-based decisional re-engagement; and that in deciding upon which side of that line an application falls, one looks not to the bare fact that judgment has been delivered but to the order or relief which is sought. That submission is, in my judgment, correct, and I accept it. The two authorities are of one voice with Telkom upon the point, and indeed both derive it from Telkom. Functus officio is not a rule that a court may do nothing after judgment. It is a rule that a court may not, after judgment, do again what it has already done, nor do for the first time what it ought to have been asked to do before. The test is one of substance, and it is by the substance of what is sought that this application falls to be measured. Where the applicants and I part company is not upon the test but upon its application to their prayers. Against that background I turn to the avenues by which a court may lawfully engage with its own concluded judgment.
21. The first is the slip rule. Section 99 of the Civil Procedure Act provides that 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. The jurisdiction so conferred is corrective, not creative. Its office is to make the judgment as drawn accurately express what the court actually decided and intended at the time of delivery to make the record speak the truth. It does not permit the court, under the guise of correction, to have second thoughts, to grant relief that was never sought or considered, to adjudicate fresh controversies, or to add to its judgment substantive orders which it did not, and on the material before it could not, have made. The second is the limited power of a court to clarify or interpret its own judgment where a genuine ambiguity or obscurity in its language threatens to frustrate implementation. That power is equally narrow. A clarification explains what the judgment means and how it operates; it does not alter what the judgment does. The moment an application, however styled, invites the court to make new orders defining or conferring rights and obligations which the judgment itself did not define or confer, it has crossed from clarification into variation, and the court, being functus officio, must decline the invitation.
22. The third is the power to take further proceedings which are incidental to, or the natural consequence of, the final decision proceedings directed at facilitating or supplementing the court’s own processes so that what it has decided is realised. The essential feature of that jurisdiction, and equally its essential limitation, is that there must be something in the judgment to be realised. The court gives effect to what it decided; it does not decide something further. It is necessary to say something further about that avenue, because it is the one upon which this application ultimately turns, and because the argument before me treated it as though it were confined to the enforcement of an order cast in mandatory form. It is not so confined. A decretal term may be realised as much where a judgment has taken something away as where it has commanded something to be done.
[...truncated]
2. The application has been canvassed by way of written submissions the respondents filed Written Submissions dated 6th August 2026, the applicants replied by Written Submissions in Rebuttal dated 10th August 2026, and the respondents answered by Further Submissions dated 13th August 2026, expressed to be confined to the new matters and authorities raised in the rebuttal. I have read and considered the Notice of Motion, the supporting and further affidavits together with their annexures, the Grounds of Opposition, all three sets of submissions and the authorities cited in each, and the Judgment of 30th June 2026, which I have re-read in its entirety for purposes of this ruling.
The Applicants’ case
3. The substantive prayers sought in the application fall, on analysis, into three distinct groups, and it is convenient to describe them in that way rather than seriatim, because the group to which a prayer belongs determines the jurisdictional question it raises. The first group is corrective. By prayer 3 the applicants ask the Court to recall and clarify the Judgment so as accurately to reflect the parties to the appeal following the order of 30th April 2026 striking out the 3rd, 5th, 9th and 17th Respondents; and by prayer 4 they ask the Court to clarify the Judgment so as to reflect that the record comprised fourteen (14) leases and not nineteen (19) as stated in the Judgment, so that the remitted proceedings before the Tribunal are undertaken only in respect of the leases properly forming the subject matter of the appeal.
4. The second group is regulatory. By prayer 5 the applicants ask the Court to issue such consequential and transitional directions as are necessary to clarify the legal basis and consequences of the respondents’ continued occupation of the suit premises during the intervening period, and to define, regulate and safeguard the applicants’ proprietary, possessory and reversionary rights, including their entitlement to the payment, receipt and recovery of rent and/or mesne profits, pending the Tribunal’s determination. By prayers 6 and 8 they ask the Court to invoke its residual jurisdiction and to issue such further and/or consequential orders as may be necessary to ensure the full, effective and practical implementation of the Judgment. By prayer 2 they seek, pending the hearing and determination of the application, an order restraining the respondents from subletting, conducting structural changes and/or receiving any goodwill from third parties not party to the initial lease agreements. The third group consists of a single prayer: by prayer 7 the applicants ask that the matter remitted to the Tribunal be heard by a member of the Tribunal other than Hon. Patricia May, whose orders were the subject of the appeal.
5. The grounds on the face of the Motion and the deposition in support may be shortly stated. The applicants say that while the Court set aside the interim injunctive orders which had restrained them from implementing their decision rejecting renewal of the leases, it did not issue consequential or transitional directions regulating the legal position of the parties pending the Tribunal’s determination. The setting aside, it is said, restored the applicants’ proprietary rights but left unresolved the manner in which those rights may lawfully be exercised in the interim: if they proceed to recover possession and the Tribunal thereafter finds the tenancies to be controlled, they face the risk that their actions will be impugned as premature; while if they hold their hand, the respondents remain in occupation notwithstanding that the restraining orders have been set aside. They further depose that the respondents have continued to sublet and part with possession, receive goodwill, undertake structural alterations and change the user of the premises, to the prejudice of the applicants’ reversionary interests, and that a legal vacuum has thereby arisen which is likely to generate further disputes and a multiplicity of proceedings. They are careful to state, at paragraphs 14, 26 and 29 of the supporting affidavit, that they do not seek to reopen, challenge or vary the merits of the Judgment, and that what is sought is intended only to render the Judgment complete, self-executing and capable of practical implementation. In support of the Court’s power to do so they invoke its residual jurisdiction, relying upon Mawji v Arusha General Store [1970] EA 137 , Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR and the test articulated in Kamau James Gitutho & 3 Others v Multiple ICD (K) Limited & Another (Civil Application 2 of 2019) [2019] eKLR , and drawing attention to the fact that no further appeal lies from this Judgment by virtue of section 15(4) of Cap. 301.
6. By his further affidavit sworn on 26th July 2026 the 2nd applicant joined issue with the Grounds of Opposition and annexed, as exhibit “DHM1”, a copy of the Ruling and Orders of the Business Premises Rent Tribunal (Hon. Patricia May, Member) dated 10th June 2026 in BPRT Case No. E227 of 2026, the effect of which I have summarised above. He deposes that although dated 10th June 2026, the Ruling and Orders were uploaded onto the Judiciary Case Tracking System after the present application had been filed, and came to the applicants’ attention only thereafter.
7. The applicants deploy that Ruling for three purposes. They say it demonstrates that the learned Member expressly acknowledged that the question of the Tribunal’s jurisdiction was pending determination before this Court and yet proceeded to assume jurisdiction and issue substantive interlocutory orders regulating the payment of rent and the parties’ rights and obligations. They say it confirms the very vacuum of which they complain, since the Tribunal itself found it necessary to regulate the parties’ position, and that the need for such regulation subsists after the Judgment. And they say that, absent the consequential directions sought, they would be left with no alternative but to appeal against the Ruling of 10th June 2026 upon the same jurisdictional issue which this Court has already conclusively determined, occasioning a multiplicity of proceedings, delay and additional expense. They further rely upon it, at paragraph 11 of the further affidavit, as showing that the learned Member has now on two separate occasions expressed concluded views on the very issue remitted for determination.
The Respondents’ case
8. The respondents oppose the application upon eleven Grounds of Opposition dated 22nd July 2026, taken out under Order 51 Rule 14 of the Civil Procedure Rules, 2010. Reduced to its substance, their case may be grouped under five heads. First, and centrally, that this Court, having rendered final judgment and remitted the matter, discharged its appellate mandate and is functus officio. Secondly, that the application is in truth an application for review masquerading as a request for clarification, none of the statutory preconditions for review having been pleaded or proved. Thirdly, that save for prayers 3 and 4 the application is an abuse of the process of the Court, calculated to resurrect before a forum which has discharged itself the very injunctive and occupational reliefs the Court declined, so as to harass the respondents and to delay the resumed hearing before the Tribunal. Fourthly, that prayer 7 is scandalous, frivolous, vexatious and an unconstitutional attempt to forum-shop which offends Article 160(1) of the Constitution. Fifthly, that the plea for transitional directions is superfluous and misdirected, because an active and legally binding framework already governs rental receipts by virtue of the Tribunal’s Ruling and Orders of 10th June 2026, and the assertion that the respondents occupy the suit premises without paying rent is, they say, factually false and conceals those subsisting orders.
9. They concede prayers 3 and 4, which they accept seek to rectify purely formal administrative records so as to reflect the order of 30th April 2026 and to correct the count of leases from nineteen to fourteen, and they ask that any order be limited strictly to that correction, that the balance of the application be dismissed with costs under section 27 of the Civil Procedure Act, and that the remitted file be transmitted immediately to the Tribunal for priority hearing on evidence.
The Applicants’ Submissions
10. The applicants filed Written Submissions in Rebuttal dated 10th August 2026 in answer to the objections taken in the Grounds of Opposition and amplified in the respondents’ Written Submissions dated 6th August 2026, to which I come in the next section. Those submissions frame five issues. They do not seek to re-argue the application at large; they are directed at the objections taken by the respondents. First, on functus officio, the applicants accept the principle of finality “except in special cases.” The circumstances now confronting the parties, they say, arose from the appellate determination itself and could not, in their present form, have been raised before the Judgment was delivered. The Motion is brought in the same proceedings and before the same Court, and the mischief at which Pop-In is directed piecemeal litigation and the resurrection in a fresh suit of matters properly belonging to an earlier one is therefore absent.
11. Secondly, and more substantially, the applicants advance an affirmative formulation of the doctrine drawn from In re Estate of the Late Joab Odero Odero (Deceased) (Succession Cause 227 of 1993) [2025] KEHC 6404 (KLR) and Kenya Broadcasting Corporation v Geoffrey Wakio [2019] eKLR . From the former they take the proposition that the doctrine does not prevent a court from taking further proceedings towards facilitating or supplementing its own processes, so long as those proceedings are not merit based, and that proceedings are fully concluded only when the judgment or order has been perfected. From the latter they take the proposition that the doctrine does not foreclose proceedings which are incidental to, or the natural consequence of, the final decision, and that in determining whether a court is functus one looks to the order or relief which is being sought. Upon that footing they examine each prayer in turn and submit that prayer 2 is interlocutory and preservatory; that prayers 3 and 4 are corrective; that prayer 5 is consequential, transitional and directed at implementation; that prayer 7 concerns only the manner in which the remitted proceedings are to be conducted; and that prayer 9 concerns costs none of them, they say, requiring the Court to revisit, re-evaluate or determine afresh anything the Judgment decided. Thirdly, on residual jurisdiction, they submit that the test is “two-fold”: it assists the Court first in determining whether the exceptional jurisdiction is attracted, and then whether it ought to be exercised; and the fact that the Court of Appeal declined, on the facts before it, to exercise the jurisdiction does not convert the considerations it articulated into a rule that the jurisdiction may only be refused. They further submit that the absence of a further appeal by reason of section 15(4) of Cap. 301 is one of the circumstances in which the jurisdiction may be exercised, and is accordingly a factor favouring rather than barring its exercise. Their complaint, they emphasise, is not of uncertainty simpliciter but of asymmetry: that following the setting aside of the interim orders the parties have not been left in positions of equal uncertainty, one party continuing to enjoy occupation and the incidents flowing from it while the other bears the corresponding prejudice for an indeterminate period.
12. Fourthly, on review and abuse of process, they say that they have not moved this Court under Order 45 of the Civil Procedure Rules, that the grounds governing review are therefore not the measure of this application, and that the Court must determine the Motion according to the nature and substance of the reliefs actually sought rather than according to a characterisation placed upon them by an opponent. On abuse, they address Sarak v Kotoye (1992) 9 NWLR (Pt. 264) 156 , a decision of the Supreme Court of Nigeria, and submit that none of the circumstances there identified as instances of abuse is present: there is no multiplicity of actions between the same parties on the same subject matter, no parallel proceeding in another forum, no duplication of similar processes in respect of the same right, and there is a legal basis for the process invoked. Fifthly, they raise a new issue, not taken in their principal submissions, which they frame as whether the Tribunal could properly exercise its statutory powers pending determination of its jurisdiction. Relying upon Republic v Business Premises Rent Tribunal & Another Ex parte Albert Kigera Karume [2015] KEHC 6921 (KLR) and, through it, upon Re Hebtulla Properties Ltd. [1979] KLR 96 , they submit that the Tribunal is a creature of statute whose powers under section 12 of Cap. 301 are exercisable only in relation to controlled tenancies; that at the date of the orders of 10th June 2026 the question whether these tenancies were controlled was pending before this Court and the leases had in any event expired by effluxion of time; and that in directing the deposit of rent and restraining the applicants from treating the respondents as being in default, the Tribunal gave effect to an assumed legal relationship and inverted the proper order of jurisdictional inquiry.
The Respondents’ submissions
13. In their submissions dated 6th August 2026, six issues are framed for determination. They also develop the five heads of opposition as follows. First, and centrally, they contend that jurisdiction is everything and that a court without it must down its tools, invoking the familiar admonition in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 , and they rely upon Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) (Civil Appeal 60 of 2013) [2014] KECA 600 (KLR) and upon Pop-In (Kenya) Ltd & 3 Others v Habib Bank AG Zurich [1990] KECA 62 (KLR) for the proposition that there must be an end to litigation and that a party may not reopen a concluded subject of litigation.
14. Secondly, they submit that the application is in truth a review masquerading as a request for clarification, and that none of the statutory preconditions in section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules discovery of new and important matter, an error apparent on the face of the record, or any other sufficient reason has been pleaded or proved. They rely upon National Bank of Kenya Ltd v Njau (Civil Appeal 211 of 1996) [1997] KECA 71 (KLR) for the settled propositions that an error justifying review must be self-evident and not require elaborate argument, that a wrong conclusion of law is a ground of appeal and not of review, and that an issue hotly contested cannot be reviewed by the very court that adjudicated upon it. Thirdly, they contend that, save for prayers 3 and 4, the application is an abuse of the process of the Court and liable to be struck out, relying upon Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others, Civil Appeal No. 25 of 2002 [2009] eKLR and Energy Regulatory Commission v John Sigura Otido [2021] KECA 1060 (KLR) . The applicants, they say, seek to resurrect before a forum that has discharged itself the very injunctive and occupational reliefs the Court declined, in order to harass the respondents and delay the resumed hearing before the Tribunal.
15. Fourthly, they contend that prayer 7 is scandalous, frivolous, vexatious and an unconstitutional attempt to forum-shop which offends Article 160(1) of the Constitution. Relying on Rai & 3 Others v Rai & 4 Others (Petition 4 of 2012) [2013] KESC 20 (KLR) , and through it on Metropolitan Properties Co. (FGC) Ltd v Lannon [1969] 1 QB 577 and Porter v Magill [2002] 2 AC 357 , they submit that bias must be established on objective facts as perceived by a fair-minded observer, and that the applicants’ grievance stems solely from adverse interlocutory rulings, which do not equate to judicial bias. Fifthly, on the question of transitional directions, they contend that the plea is superfluous and misdirected because an active, legally binding framework already governs rental receipts: by a Ruling and resultant Orders issued on 10th June 2026 in BPRT Case No. E227 of 2026 the Tribunal permitted the tenants to deposit their monthly rent directly into its official bank account, deemed such deposit to constitute full and lawful performance of their rental obligations, and restrained the landlords from alleging rent arrears, issuing default notices, levying distress or executing evictions for periods covered by the deposits. The assertion that the respondents occupy without paying rent is, they say, factually false and deliberately conceals those subsisting orders.
16. The respondents answered the applicants’ rebuttal by Further Submissions dated 13th August 2026, confined to the matters there raised. On Pop-In, they say that the “special cases” there contemplated are matters which could not, with reasonable diligence, have been raised in the proceedings already concluded, and not matters which a party wishes it could now raise because it is dissatisfied with the practical consequences of a judgment properly obtained. On Kenya Broadcasting Corporation v Geoffrey Wakio (Supra) they say the authority is self-defeating in the applicants’ hands: what the Court of Appeal there held was that a further order made after the court had already dispensed with the merits and made its orders was null and void, and that, they submit, is the precise vice here, prayers 2, 5, 6 and 8 inviting fresh findings on subletting, structural alteration, the collection of goodwill and the quantum of rent or mesne profits, none of which was adjudicated by the Judgment. On In re Estate of the Late Joab Odero Odero (Supra) they say the case is readily distinguishable: the application there sought to give effect to an order which had already, in clear and unqualified terms, directed the respondent to vacate the suit property and which he had refused to obey, the court being asked only to realise a decretal term. No equivalent decretal term, they say, exists here, the Judgment containing no operative term regulating subletting, structural works, goodwill or rent, for the simple reason that no such term was ever sought or argued at the hearing of the appeal. They do not dispute that the three considerations operate together, nor that satisfaction of all three may in an appropriate case justify the exercise of the jurisdiction; their point is narrower, namely that on the facts of this application the first and second limbs are not met, so that the third cannot on its own carry the applicants across the threshold. On review, they say they never contended that the Motion formally invokes Order 45; their submission was, and remains, that it is a review masquerading as something else, its substance rather than its form bringing it within the mischief which Order 45 and section 80 of the Civil Procedure Act exist to control. On abuse of process, they observe that Sarak v Kotoye (Supra) was not an authority relied upon by them at all, and that their case rested upon Muchanga Investments Ltd (Supra) and Energy Regulatory Commission v John Sigura Otido (Supra) neither of which is addressed anywhere in the rebuttal, so that their submission on abuse stands, as they put it, unanswered.
17. On asymmetry, they say that the parties’ relationship pending the Tribunal’s determination is not left ungoverned: it is regulated by the Tribunal’s own Ruling of 10th June 2026, which requires the respondents to deposit rent with the Tribunal and correspondingly restrains the applicants from treating them as being in default; the complaint is in substance dissatisfaction with the terms of that framework, properly agitated before the Tribunal or, if appropriate, by way of judicial review of its Ruling. On the assertion that the Ruling was uploaded onto the Case Tracking System long after 10th June 2026, they say that, taken at its highest, it establishes no more than a delay in the administrative upload of a ruling, which is commonplace and unremarkable and says nothing about the date on which the Ruling was in fact delivered or the reasoning it recorded; and that if what is intended is a suggestion that the Ruling was antedated or otherwise irregularly issued, that is a serious allegation which has not been particularised, is unsupported by any affidavit evidence, and cannot be inferred from an upload timestamp. They add that a member who, faced with a landlord’s refusal to accept rent, directs that it be deposited into the Tribunal’s custodial account protects the landlord’s entitlement to receive rent while protecting the tenants from unlawful eviction, and is acting in a manner even-handed on its face, so that a fair-minded and informed observer would be less, not more, likely to apprehend bias; and that if another member is desired, the requisite application for recusal ought to be made to the Tribunal rather than similar orders sought from a superior court to bind it. Finally, on the applicants’ new fifth issue, it is submitted that the Tribunal, as a subordinate court within Article 169(1)(d) of the Constitution, has power under section 63(c) of the Civil Procedure Act to grant temporary injunctions; that it is commonplace, and unobjectionable, for a court or tribunal whose jurisdiction is under challenge to make interim, protective directions preserving the status quo pending resolution of that challenge without thereby assuming or prejudging the jurisdictional question; and that the orders of 10th June 2026 did no more than establish a custodial arrangement for rent pending the very determination which the Judgment afterwards remitted. They pray that prayers 1, 2, 5, 6, 7, 8 and 9 be dismissed with costs, and that any order arising from the application be limited strictly to the administrative rectifications conceded under prayers 3 and 4.
Analysis and Determination
18. Having considered the pleadings, the submissions and the authorities, the following eight issues arise for determination:
(i) What jurisdiction, if any, this Court retains over the Judgment delivered on 30th June 2026, and what is the scope of that jurisdiction, having regard in particular to the residual jurisdiction invoked and to section 15(4) of Cap. 301;
(ii) Whether the corrective relief sought by prayers 3 and 4 ought to be granted;
(iii) Whether, and to what extent, this Court may make the consequential and transitional directions sought by prayers 2, 5, 6 and 8;
(iv) What effect, if any, the Ruling and Orders of the Tribunal dated 10th June 2026 have upon the disposal of this application;
(v) Whether it is open to this Court, upon this application, to pronounce upon the competence of the Tribunal to make the interim directions it made on 10th June 2026 while the question of its jurisdiction was pending before this Court;
(vi) Whether prayer 7, that the remitted matter be heard by a member of the Tribunal other than Hon. Patricia May, ought to be granted;
(vii) Whether the application, save for prayers 3 and 4, constitutes an abuse of the process of the Court; and
(viii) Who should bear the costs of the application.
The jurisdiction of the Court after judgment
19. When a court has heard and finally determined the matter before it and has delivered judgment, its seisin of that matter comes to an end. It becomes functus officio, having discharged the office committed to it, and it thereafter has no general power to alter, add to, supplement or reconsider what it has decided. The rule is not a technicality. It is an incident of the finality of judicial decisions, without which litigation would have no terminus and no judgment would be safe to act upon. The principle is well settled. In Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) (Civil Appeal 60 of 2013) [2014] KECA 600 (KLR) the Court of Appeal, adopting the analysis in Chandler v Alberta Association of Architects [1989] 2 S.C.R. 848 and the passage from Jersey Evening Post Ltd v Al Thani [2002] JLR 542 cited by the Supreme Court in Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR , explained that a court is functus when it has performed all its duties in a particular case; that the doctrine bars a merit-based decisional re-engagement with a case once final judgment has been entered; and that where what is sought goes beyond the recognised exceptions, the court is wrong to entertain it. The Court there identified the exceptions as a slip in drawing up the judgment and an error in expressing the manifest intention of the court, and observed that the grounds on which the application before it was premised betrayed the serious adjudicative exercise the court was being called upon to perform. Those observations have a distinctly familiar ring in the present application.
20. The applicants do not dispute that principle. What they say, drawing upon Kenya Broadcasting Corporation v Geoffrey Wakio [2019] eKLR and In re Estate of the Late Joab Odero Odero (Deceased) [2025] KEHC 6404 (KLR) , is that the doctrine is not to be understood as barring every engagement by a court with a case it has decided; that what it bars is a merit-based decisional re-engagement; and that in deciding upon which side of that line an application falls, one looks not to the bare fact that judgment has been delivered but to the order or relief which is sought. That submission is, in my judgment, correct, and I accept it. The two authorities are of one voice with Telkom upon the point, and indeed both derive it from Telkom. Functus officio is not a rule that a court may do nothing after judgment. It is a rule that a court may not, after judgment, do again what it has already done, nor do for the first time what it ought to have been asked to do before. The test is one of substance, and it is by the substance of what is sought that this application falls to be measured. Where the applicants and I part company is not upon the test but upon its application to their prayers. Against that background I turn to the avenues by which a court may lawfully engage with its own concluded judgment.
21. The first is the slip rule. Section 99 of the Civil Procedure Act provides that 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. The jurisdiction so conferred is corrective, not creative. Its office is to make the judgment as drawn accurately express what the court actually decided and intended at the time of delivery to make the record speak the truth. It does not permit the court, under the guise of correction, to have second thoughts, to grant relief that was never sought or considered, to adjudicate fresh controversies, or to add to its judgment substantive orders which it did not, and on the material before it could not, have made. The second is the limited power of a court to clarify or interpret its own judgment where a genuine ambiguity or obscurity in its language threatens to frustrate implementation. That power is equally narrow. A clarification explains what the judgment means and how it operates; it does not alter what the judgment does. The moment an application, however styled, invites the court to make new orders defining or conferring rights and obligations which the judgment itself did not define or confer, it has crossed from clarification into variation, and the court, being functus officio, must decline the invitation.
22. The third is the power to take further proceedings which are incidental to, or the natural consequence of, the final decision proceedings directed at facilitating or supplementing the court’s own processes so that what it has decided is realised. The essential feature of that jurisdiction, and equally its essential limitation, is that there must be something in the judgment to be realised. The court gives effect to what it decided; it does not decide something further. It is necessary to say something further about that avenue, because it is the one upon which this application ultimately turns, and because the argument before me treated it as though it were confined to the enforcement of an order cast in mandatory form. It is not so confined. A decretal term may be realised as much where a judgment has taken something away as where it has commanded something to be done.
[...truncated]