1. This is a Ruling on a Notice of Motion dated 31.03.2026 and filed by the Applicant seeking reliefs as follows:
a) Spent
b) THAT this Honourable Court be pleased to join the applicant herein as an interested party to this matter
c) THAT after joinder of the applicant, this Honourable Court be pleased to review its ruling and order dated 19th March 2026
2. The Notice of Motion dated 31.03.2026 was based on the following grounds:
(a) There is an error apparent in the said ruling and order.
(b) The Applicant herein did not in any way facilitate one James Kinyua to sell the property in issue.
(c) At all material times when the subject herein Charles Kingori Muchemi visited the Applicant’s office to initially enter into the agreement, sign transfer form as well as the application for land board consent for subdivision, he was of apparent sound mind.
3. The Applicant swore a lengthy affidavit in support of the Application whose gist was that she did not receive Ksh. 70,000/= and dealt with Charles Kingori Muchemi who was of sound mind. She expressed that she risks being prosecuted for being held to have received the money she did not receive.
4. The Applicant therefore sought to review the order of this court on account of an error apparent on the face of the record.
5. The Guardian, as Respondent, filed her Grounds of Opposition dated 12.5.2026. It was her position that the court had already determined that Charles Kingori Muchemi was not of sound mind and the case had closed. The Application for review was an attempt to relitigate this issue.
6. It was her case that there was no error apparent on the face of the record.
7. According to her, the Application was res judicata as the issue of mental capacity had already been determined.
8. The parties did not file submissions.
Analysis
12. On the first issue, joining the Applicant as an Interested Party, the case herein was a special jurisdiction case for appointment of a guardian ad litem for the purpose of managing the affairs of Charles Kingori Muchemi owing to his mental incapacity. The ruling of 19.3.2026 duly appointed Naomi Wanjiru Kingori as such, and there is no issue left to welcome further parties as interested parties. As the court held in Joan Akoth Ajuang & another v Michaels Owuor Osodo - Chief Simur Kondiek, Ukwala Location & 3 others; Malaika Foundation (Proposed Interested Party) [2020] KEHC 5840 (KLR:
“The broad principles which govern disposal of an application for joinder of interested parties are that the court can, either on an application made by any interested party or on its own motion, direct any person as a party to be enjoined in the proceedings. The elements to be satisfied where a party seeks to be enjoined in proceedings as an interested party are: the intended interested party must have "an identifiable stake” or legal interest or duty in the proceedings. ”The test is not whether the joinder of the person proposed to be added as an interested party would be according to or against the wishes of the petitioner or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the petitioner. It is whether the intended interested party has an identifiable stake, or a legal interest or duty in the proceedings.”
13. The Applicant has not demonstrated an identifiable stake in the affairs of Charles Kingori Muchemi. The observation of the court on the transactions that Charles Kingori Muchemi undertook was not at the core of the finding on his mental disposition, which was supported by medical evidence. This remained unchanged.
14. The Supreme Court[DK Maraga, CJ & P, MK Ibrahim, JB Ojwang, N Ndungu & I Lenaola, SCJJ] in the case of Methodist Church in Kenya v Fugicha & 3 others [2019] KESC 59 (KLR) , addressed the question of an interested party as follows:
51.The interested party’s case brought forth a new element in the cause: that denying Muslim female students the occasion to wear even a limited form of hijab would force them to make a choice between their religion, and their right to education: this would stand in conflict with article 32 of the Constitution. It is on this basis that he cross-petitioned at paragraph 34 of his replying affidavit, for the Muslim students to be allowed to wear the hijab, in accordance with articles 27(5) and 32 of the Constitution .
52.The cross-petition was expressed in straight terms: “I am swearing this affidavit in opposition to the petition herein for it to be dismissed with costs, and … I am also cross-petitioning that Muslim Students be allowed to wear a limited form of hijab (a scarf and a trouser) as a manifestation, practice and observance of their religion consistent with article 32 of the Constitution of Kenya , and their right to equal protection and equal benefit of the law under article 27(5) of the Constitution.”
53.What should we make of a cross-petition fashioned as such? Yet this court has been categorical that the most crucial interest or stake in any case is that of the primary parties before the court. We did remark, in Francis Karioki Muruatetu & another v Republic & 5 other s, Sup Ct Pet 15 & 16 of 2015 (consolidated); [2016] eKLR, as follows (paragraphs 41, 42):“Having carefully considered all arguments, we are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties’ before the court. The determination of any matter will always have a direct effect on the primary/principal parties. Third parties admitted as interested parties may only be remotely or indirectly affected, but the primary impact is on the parties that first moved the court. This is true, more so, in proceedings that were not commenced as Public Interest Litigation (PIL), like the proceedings now before us.Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the court will always remain the issues as presented by the principal parties, or as framed by the court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues or introduce new issues for determination by the court. One of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the court. That stake cannot take the form of an altogether a new issue to be introduced before the court ” [emphasis supplied].
54.In like terms we thus observed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others , Civil Appeal No 290 of 2012 (paragraph 24):“A suit in court is a ‘solemn’ process, ‘owned’ solely by the parties. This is the reason why there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and on who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it. Consequently, where a person not initially a party to a suit is enjoined as an interested party, this new party cannot be heard to seek to strike out the suit, on the grounds of defective pleadings.”
55.Against such a background, the trial court ought not to have entertained issues arising from the cross-petition by the interested party, especially in view of article 163(7) of the Constitution which provides that ‘All courts, other that the Supreme Court, are bound by the decisions of the Supreme Court.” Moreover, this cross-petition did not comply with rule 15(3) of the Mutunga Rules which speaks to a respondent filing a cross-petition; and it was also not in conformity with rule 10(2) of these rules. Rule 10(3) cannot also be invoked as the replying affidavit of the interested party does not fit any of the descriptions contained therein.
56.We further note that the petition is unyielding that the cross – petition did not meet the set out requirements, it was defective and inconsistent with the Mutunga Rules, further, they argue that consideration of the same by the appellate court violated their right to fair trial denying them opportunity to prepare and canvass the issue raised in the cross-petition.
15. The matter is a solemn process for the parties, and interested parties have no place in it. The court has already determined questions raised under sections 26, 28 (1) & (2) of the Mental Health Act, CAP 248, Laws of Kenya. The court is now functus officio. In the case of Ochanda (Suing on his Behalf and on Behalf of 996 Former Employees of Telkom Limited) v Telkom Kenya Limited (Motion 24 of 2014) [2014] KESC 7 (KLR) (25 November 2014) (Ruling), the court of appeal[EM Githinji, W Karanja & Po Kiage, JJ] addressed the principle of Functus officio as follows:
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 re-opened 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. SeePaper 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 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;
16. The court cannot revisit its decision on the merits simply because a non-party thought that the court could have decided others. In the case of Menginya Salim Murgani v Kenya Revenue Authority [2014] eKLR, Supreme Court posited as follows:
It is a general principle of law that a Court after passing Judgment, becomes functus officio and cannot revisit the Judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law. In Lakhamshi Brothers v. Raja & Sons [1966] EA 313 the then Court of Appeal held
as follows:
“ This court is now the final Court of Appeal and when this court delivers its judgement, that judgement is, so far as the particular proceedings are concerned, the end of the litigation. It determines in respect of the parties to the particular proceedings their final legal position, subject as I have said to the limited application of the slip rule.”
17. Further Supreme Court decision of Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR) 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.”
21. 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.”
18. In view of the foregoing and the fact that the circumstances dictating the impugned ruling have not changed, and I find no basis to join the Applicant as a third party as the matter was concluded and closed.
19. The next issue is review. The Jurisdiction of this Court to grant review is well set out in the law. Section 80 of the Civil Procedure Act states that:
“Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit”.
Section 63 (e) of the Civil Procedure Act states that:
“In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed make such other interlocutory orders as may appear to the court to be just and convenient
20. Order 45 of the Civil Procedure Rules provides for Review and it states as follows:
“(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review”
21. The rationale for the discretionary power of review is to find whether any evident error or omission needs correction or is otherwise a requisite for ends of justice. This power inheres in every court of plenary jurisdiction and is premised on preventing miscarriage of justice or an injustice. I associate myself with the reasoning of Kuloba J (as he then was) in Lakesteel Supplies vs. Dr. Badia and Anor Kisumu HCCC No. 191 of 1994 where he opined that:
“The exercise of review entails a judicial re-examination, that is to say, a reconsideration, and a second view or examination, and a consideration for purposes of correction of a decree or order on a former occasion. And one procures such examination and correction, alteration or reversal of a former position for any of the reasons set out above. The court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 44 rule 1, of the Civil Procedure Rules. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. It can only lie if one of the grounds is shown, one cannot elaborately go into evidence again and then reverse the decree or order as that would be acting without jurisdiction, and to be sitting in appeal. The object is not to enable a judge to rewrite a second judgement or ruling because the first one is wrong…On an application for review, the court is to see whether any evident error or omission needs correction or is otherwise a requisite for ends of justice. The power, which inheres in every court of plenary jurisdiction, is exercised to prevent miscarriage of justice or to correct grave and palpable errors. It is a discretionary power. In the present application it has not been said or even suggested that after the passing of the order sought to be reviewed, there is a discovery of new and important matter of evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the ruling was made.”
22. The Applicant sought to review and set aside the Ruling of 19.3.2026 and to be on the ground of error apparent. The error apparent on the face of the record appears to be that Charles Kingori Muchemi visited the Applicant’s office to initially enter into the agreement, sign the transfer form as well as the application for land board consent for subdivision; he was of apparent sound mind, and the Applicant never received Ksh. 70,000/=. The Court of Appeal in Mahinda vs. Kenya Power & Lighting Co. Ltd [2005] 2 KLR 418 expressed itself as follows:
“The Court has however, always refused invitations to review, vary or rescind its own decisions except so as to give effect to its intention at the time the decision was made for to depart from this would be a most dangerous course in that it would open the doors to all and sundry to challenge the correctness of the decisions of the Court on the basis of arguments thought of long after the judgement or decision was delivered or made.”
23. An error apparent need not be seen by reading between the lines of the Ruling. The error ought to have been manifest and capable of being simply ruled out. The court’s finding that Charles Kingori Muchemi was not of sound disposition was a finding on a question of law and it was not proper for the Applicant to seek to review it as an error apparent on the face of the record. It was a final finding and determination that would only be appealable. The lower court could not sit on a disguised appeal to itself. The Code of Civil Procedure , Volume III Pages 3652-3653 by Sir Dinshaw Fardunji Mulla states:
… The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not ground for review. The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, rule 1, Code of Civil Procedure…The review court cannot sit as an Appellate Court. Mere possibility of two views is not a ground of review. Thus, re-assessing evidence and pointing out defects in the order of the court is not proper.”
24. I cannot consequently strain my discretion beyond the bounds of the law in the circumstances. In the case of Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36 , the Supreme Court of India rendered itself thus on the issue of judicial discretion:
“Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:
“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He s not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains”.
25. As to costs, the Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR , as follows: -
“[18] It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.
26. In the circumstances, I am inclined to direct each party, since the applicant is a non-party, to bear their own costs to rest this matter that is now resting.
27. In the circumstances, and bearing in mind that the Applicant is not a party to these proceedings, I direct that each party shall bear its own costs. This order should finally bring this matter to rest.
Determination
28. The upshot of the foregoing is that I make the following Orders:
i) The Notice of Motion dated 31.03.2026 is not merited and is dismissed.
ii) Each party to bear their own costs.
DELIVERED, DATED and SIGNED at NYERI this 30 th day of July the year of our Lord Two Thousand and Twenty - Six. Ruling delivered through Microsoft Teams Online Platform.
In the presence of:
……. for the Appellant
……….. for the Respondent
Court Assistant - Michael
a) Spent
b) THAT this Honourable Court be pleased to join the applicant herein as an interested party to this matter
c) THAT after joinder of the applicant, this Honourable Court be pleased to review its ruling and order dated 19th March 2026
2. The Notice of Motion dated 31.03.2026 was based on the following grounds:
(a) There is an error apparent in the said ruling and order.
(b) The Applicant herein did not in any way facilitate one James Kinyua to sell the property in issue.
(c) At all material times when the subject herein Charles Kingori Muchemi visited the Applicant’s office to initially enter into the agreement, sign transfer form as well as the application for land board consent for subdivision, he was of apparent sound mind.
3. The Applicant swore a lengthy affidavit in support of the Application whose gist was that she did not receive Ksh. 70,000/= and dealt with Charles Kingori Muchemi who was of sound mind. She expressed that she risks being prosecuted for being held to have received the money she did not receive.
4. The Applicant therefore sought to review the order of this court on account of an error apparent on the face of the record.
5. The Guardian, as Respondent, filed her Grounds of Opposition dated 12.5.2026. It was her position that the court had already determined that Charles Kingori Muchemi was not of sound mind and the case had closed. The Application for review was an attempt to relitigate this issue.
6. It was her case that there was no error apparent on the face of the record.
7. According to her, the Application was res judicata as the issue of mental capacity had already been determined.
8. The parties did not file submissions.
Analysis
12. On the first issue, joining the Applicant as an Interested Party, the case herein was a special jurisdiction case for appointment of a guardian ad litem for the purpose of managing the affairs of Charles Kingori Muchemi owing to his mental incapacity. The ruling of 19.3.2026 duly appointed Naomi Wanjiru Kingori as such, and there is no issue left to welcome further parties as interested parties. As the court held in Joan Akoth Ajuang & another v Michaels Owuor Osodo - Chief Simur Kondiek, Ukwala Location & 3 others; Malaika Foundation (Proposed Interested Party) [2020] KEHC 5840 (KLR:
“The broad principles which govern disposal of an application for joinder of interested parties are that the court can, either on an application made by any interested party or on its own motion, direct any person as a party to be enjoined in the proceedings. The elements to be satisfied where a party seeks to be enjoined in proceedings as an interested party are: the intended interested party must have "an identifiable stake” or legal interest or duty in the proceedings. ”The test is not whether the joinder of the person proposed to be added as an interested party would be according to or against the wishes of the petitioner or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the petitioner. It is whether the intended interested party has an identifiable stake, or a legal interest or duty in the proceedings.”
13. The Applicant has not demonstrated an identifiable stake in the affairs of Charles Kingori Muchemi. The observation of the court on the transactions that Charles Kingori Muchemi undertook was not at the core of the finding on his mental disposition, which was supported by medical evidence. This remained unchanged.
14. The Supreme Court[DK Maraga, CJ & P, MK Ibrahim, JB Ojwang, N Ndungu & I Lenaola, SCJJ] in the case of Methodist Church in Kenya v Fugicha & 3 others [2019] KESC 59 (KLR) , addressed the question of an interested party as follows:
51.The interested party’s case brought forth a new element in the cause: that denying Muslim female students the occasion to wear even a limited form of hijab would force them to make a choice between their religion, and their right to education: this would stand in conflict with article 32 of the Constitution. It is on this basis that he cross-petitioned at paragraph 34 of his replying affidavit, for the Muslim students to be allowed to wear the hijab, in accordance with articles 27(5) and 32 of the Constitution .
52.The cross-petition was expressed in straight terms: “I am swearing this affidavit in opposition to the petition herein for it to be dismissed with costs, and … I am also cross-petitioning that Muslim Students be allowed to wear a limited form of hijab (a scarf and a trouser) as a manifestation, practice and observance of their religion consistent with article 32 of the Constitution of Kenya , and their right to equal protection and equal benefit of the law under article 27(5) of the Constitution.”
53.What should we make of a cross-petition fashioned as such? Yet this court has been categorical that the most crucial interest or stake in any case is that of the primary parties before the court. We did remark, in Francis Karioki Muruatetu & another v Republic & 5 other s, Sup Ct Pet 15 & 16 of 2015 (consolidated); [2016] eKLR, as follows (paragraphs 41, 42):“Having carefully considered all arguments, we are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties’ before the court. The determination of any matter will always have a direct effect on the primary/principal parties. Third parties admitted as interested parties may only be remotely or indirectly affected, but the primary impact is on the parties that first moved the court. This is true, more so, in proceedings that were not commenced as Public Interest Litigation (PIL), like the proceedings now before us.Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the court will always remain the issues as presented by the principal parties, or as framed by the court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues or introduce new issues for determination by the court. One of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the court. That stake cannot take the form of an altogether a new issue to be introduced before the court ” [emphasis supplied].
54.In like terms we thus observed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others , Civil Appeal No 290 of 2012 (paragraph 24):“A suit in court is a ‘solemn’ process, ‘owned’ solely by the parties. This is the reason why there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and on who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it. Consequently, where a person not initially a party to a suit is enjoined as an interested party, this new party cannot be heard to seek to strike out the suit, on the grounds of defective pleadings.”
55.Against such a background, the trial court ought not to have entertained issues arising from the cross-petition by the interested party, especially in view of article 163(7) of the Constitution which provides that ‘All courts, other that the Supreme Court, are bound by the decisions of the Supreme Court.” Moreover, this cross-petition did not comply with rule 15(3) of the Mutunga Rules which speaks to a respondent filing a cross-petition; and it was also not in conformity with rule 10(2) of these rules. Rule 10(3) cannot also be invoked as the replying affidavit of the interested party does not fit any of the descriptions contained therein.
56.We further note that the petition is unyielding that the cross – petition did not meet the set out requirements, it was defective and inconsistent with the Mutunga Rules, further, they argue that consideration of the same by the appellate court violated their right to fair trial denying them opportunity to prepare and canvass the issue raised in the cross-petition.
15. The matter is a solemn process for the parties, and interested parties have no place in it. The court has already determined questions raised under sections 26, 28 (1) & (2) of the Mental Health Act, CAP 248, Laws of Kenya. The court is now functus officio. In the case of Ochanda (Suing on his Behalf and on Behalf of 996 Former Employees of Telkom Limited) v Telkom Kenya Limited (Motion 24 of 2014) [2014] KESC 7 (KLR) (25 November 2014) (Ruling), the court of appeal[EM Githinji, W Karanja & Po Kiage, JJ] addressed the principle of Functus officio as follows:
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 re-opened 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. SeePaper 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 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;
16. The court cannot revisit its decision on the merits simply because a non-party thought that the court could have decided others. In the case of Menginya Salim Murgani v Kenya Revenue Authority [2014] eKLR, Supreme Court posited as follows:
It is a general principle of law that a Court after passing Judgment, becomes functus officio and cannot revisit the Judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law. In Lakhamshi Brothers v. Raja & Sons [1966] EA 313 the then Court of Appeal held
as follows:
“ This court is now the final Court of Appeal and when this court delivers its judgement, that judgement is, so far as the particular proceedings are concerned, the end of the litigation. It determines in respect of the parties to the particular proceedings their final legal position, subject as I have said to the limited application of the slip rule.”
17. Further Supreme Court decision of Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR) 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.”
21. 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.”
18. In view of the foregoing and the fact that the circumstances dictating the impugned ruling have not changed, and I find no basis to join the Applicant as a third party as the matter was concluded and closed.
19. The next issue is review. The Jurisdiction of this Court to grant review is well set out in the law. Section 80 of the Civil Procedure Act states that:
“Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit”.
Section 63 (e) of the Civil Procedure Act states that:
“In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed make such other interlocutory orders as may appear to the court to be just and convenient
20. Order 45 of the Civil Procedure Rules provides for Review and it states as follows:
“(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review”
21. The rationale for the discretionary power of review is to find whether any evident error or omission needs correction or is otherwise a requisite for ends of justice. This power inheres in every court of plenary jurisdiction and is premised on preventing miscarriage of justice or an injustice. I associate myself with the reasoning of Kuloba J (as he then was) in Lakesteel Supplies vs. Dr. Badia and Anor Kisumu HCCC No. 191 of 1994 where he opined that:
“The exercise of review entails a judicial re-examination, that is to say, a reconsideration, and a second view or examination, and a consideration for purposes of correction of a decree or order on a former occasion. And one procures such examination and correction, alteration or reversal of a former position for any of the reasons set out above. The court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 44 rule 1, of the Civil Procedure Rules. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. It can only lie if one of the grounds is shown, one cannot elaborately go into evidence again and then reverse the decree or order as that would be acting without jurisdiction, and to be sitting in appeal. The object is not to enable a judge to rewrite a second judgement or ruling because the first one is wrong…On an application for review, the court is to see whether any evident error or omission needs correction or is otherwise a requisite for ends of justice. The power, which inheres in every court of plenary jurisdiction, is exercised to prevent miscarriage of justice or to correct grave and palpable errors. It is a discretionary power. In the present application it has not been said or even suggested that after the passing of the order sought to be reviewed, there is a discovery of new and important matter of evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the ruling was made.”
22. The Applicant sought to review and set aside the Ruling of 19.3.2026 and to be on the ground of error apparent. The error apparent on the face of the record appears to be that Charles Kingori Muchemi visited the Applicant’s office to initially enter into the agreement, sign the transfer form as well as the application for land board consent for subdivision; he was of apparent sound mind, and the Applicant never received Ksh. 70,000/=. The Court of Appeal in Mahinda vs. Kenya Power & Lighting Co. Ltd [2005] 2 KLR 418 expressed itself as follows:
“The Court has however, always refused invitations to review, vary or rescind its own decisions except so as to give effect to its intention at the time the decision was made for to depart from this would be a most dangerous course in that it would open the doors to all and sundry to challenge the correctness of the decisions of the Court on the basis of arguments thought of long after the judgement or decision was delivered or made.”
23. An error apparent need not be seen by reading between the lines of the Ruling. The error ought to have been manifest and capable of being simply ruled out. The court’s finding that Charles Kingori Muchemi was not of sound disposition was a finding on a question of law and it was not proper for the Applicant to seek to review it as an error apparent on the face of the record. It was a final finding and determination that would only be appealable. The lower court could not sit on a disguised appeal to itself. The Code of Civil Procedure , Volume III Pages 3652-3653 by Sir Dinshaw Fardunji Mulla states:
… The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not ground for review. The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, rule 1, Code of Civil Procedure…The review court cannot sit as an Appellate Court. Mere possibility of two views is not a ground of review. Thus, re-assessing evidence and pointing out defects in the order of the court is not proper.”
24. I cannot consequently strain my discretion beyond the bounds of the law in the circumstances. In the case of Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36 , the Supreme Court of India rendered itself thus on the issue of judicial discretion:
“Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:
“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He s not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains”.
25. As to costs, the Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR , as follows: -
“[18] It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.
26. In the circumstances, I am inclined to direct each party, since the applicant is a non-party, to bear their own costs to rest this matter that is now resting.
27. In the circumstances, and bearing in mind that the Applicant is not a party to these proceedings, I direct that each party shall bear its own costs. This order should finally bring this matter to rest.
Determination
28. The upshot of the foregoing is that I make the following Orders:
i) The Notice of Motion dated 31.03.2026 is not merited and is dismissed.
ii) Each party to bear their own costs.
DELIVERED, DATED and SIGNED at NYERI this 30 th day of July the year of our Lord Two Thousand and Twenty - Six. Ruling delivered through Microsoft Teams Online Platform.
In the presence of:
……. for the Appellant
……….. for the Respondent
Court Assistant - Michael