[1] The Notice of Motion dated 25 th February 2025 was brought by the applicant, Rael Jepkorir Lagat , under Section 7 of the Appellate Jurisdiction Act, Cap. 21, and Order 42 Rule 6 of the Civil Procedure Rules. 2010, as well as all other enabling provisions of the law. The applicant thereby prayed for the following orders:
[a] Spent.
[b] Spent
[c] THAT an order of injunction be issued against the respondent restraining him whether by himself, his servants and/or agents, from selling, leasing, transferring, encumbering, alienating, interfering with and evicting the applicant from land parcels known as Nandi/Mutwot/389, Nandi/Ngechek/650, Nandi/Mutwot/383, Nand1/Ngechek/648, Nandi/Ngechek/435, Nandi/Ngechek/824 and Nandi/Ngechek/975 all situate within Nandi County pending the hearing and determination of the intended appeal to the Court of Appeal against the decision of the Court delivered on 16 th October, 2024.
[d] THAT the costs of the application be provided for.
[2] The application was predicated on the grounds that sufficient cause exists for the issuance of the orders prayed for; and therefore substantial loss would result to the applicant if her prayers are not granted. The applicant further averred that she is ready to give security for the due performance of the orders that will ultimately be given by the Court of Appeal.
[3] The application was supported by the affidavit of the applicant in which she averred that on the 16 th October, 2024, the Court delivered a ruling herein in respect of the Originating Motion dated 12 th October 2023 and the Preliminary Objection dated 8 th November 2023 in which the Court upheld the respondent's Preliminary Objection and thereby dismissed the said Originating Motion and the application dated 12 th October 2023. The applicant explained that, in the said Originating Motion, she had asked for 50% share of the above mentioned pieces of land on the ground that they comprise matrimonial property.
[4] The applicant averred that she was aggrieved by the said decision and has already lodged a Notice of Appeal and applied for certified copies of the proceedings. In her view, the intended appeal raises arguable issues that would merit a pronouncement by the appellate court. She contended that substantial loss will be visited upon her unless the injunction prayed for is granted pending the intended appeal as the respondent will otherwise proceed to interfere and evict her from the suit parcels to her detriment. She also mentioned that she has occupied the suit property for many years now; and that she is willing to comply with whatever conditions the Court may impose as a condition for stay.
[5] The respondent filed Grounds of Opposition dated 16 th May 2025 contending that:
[a] The application is an abuse of the court process.
[b] Upon the delivery of the ruling dated 16 th October 2024, the Court became funtus officio and cannot grant injunctive orders post-delivery of the ruling.
[c] The orders issued were negative in nature and therefore incapable of being stayed as the application purports to seek.
[d] The Court having dismissed the main suit has no jurisdiction to entertain an application for injunction in the same suit.
[e] The application herein and the suit is devoid of merit and should be dismissed with costs to the respondent.
[6] The application was canvassed by way of written submissions pursuant to the directions of the Court on 19 th May 2025. Accordingly, the applicant filed written submissions dated 4 th July 2025. She relied on Giella v Cassman Brown & Co. Ltd [1973] E A 358 and urged the Court to find that, vide her Supporting Affidavit, she had demonstrated that:
[a] She has a prima facie case with a probability of success.
[b] That she stands to suffer irreparable injury if the injunction is not granted.
[c] That the balance of convenience tilts in her favour.
[7] The applicant further submitted that she has an arguable appeal and relied on Mrao Ltd v First American Bank of Kenya and 2 others [2003] KLR 125 and Moses C. Njoroge & 2 others v Jane W. Lesaloi & 5 others [2014] eKLR. She therefore contended that the Court is properly seized of the application, given that she has already filed a Notice of Appeal from the ruling dated 16 th October 2024 in accordance with Rule 75 of the Court of Appeal Rules. The applicant further submitted that it is sufficient if a single bona fide arguable ground of appeal is raised. She relied on Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai. 345 of 2004.
[8] The applicant further submitted that her appeal will be rendered nugatory unless the order of injunction is granted. She added that, whether or not an appeal will be rendered nugatory depends on whether what is sought to be stopped is reversible; and if so whether damages would reasonably compensate the party aggrieved. The applicant relied on International Laboratory for Research on Animal Diseases v Kinyua [1990] KLR 403 and Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 443 for the proposition that even where a judge has dismissed an application for interlocutory injunction, there remains the jurisdiction to grant the unsuccessful party an injunction pending appeal against the dismissal so as to prevent the appeal from being rendered nugatory.
[9] On the balance of convenience, the applicant urged the Court to take into account that she has occupied and used the suit properties with her children for a period of 40 years; and that there is a likelihood that the respondent will dispose of the properties to third parties and therefore, in the event of a successful appeal the situation may turn out to be irreversible. She also posited that she risks being evicted from the properties that she jointly acquired with the deceased. She therefore urged the Court to ensure the status quo is maintained pending the hearing and determination of her appeal.
[10] On his part, the respondent filed written submissions dated 10 th June 2026. He reiterated his Grounds of Opposition dated 16 th May, 2025 and submitted, on the authority of the Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] that once the Court delivered its ruling on 16 th October. 2024 and dismissed the applicant’s Originating Summons in its entirety, the court became functus officio . and therefore lacks the jurisdiction to entertain an application for stay pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
[11] It was further the submission of the respondent that, under Rule 6 aforementioned, the Court can only exercise jurisdiction to grant an injunction in the exercise of its appellate jurisdiction and therefore the application for injunction ought to have been filed in the Court of Appeal under the Court of Appeal Rules. The respondent also submitted that the application was filed after inordinate delay, granted that the ruling was delivered on 16 th October 2024 and the application was not filed until 25 th February 2025. Hence the respondent argued that, even if the Court had the jurisdiction to grant the orders sought, the conditions for stay under Order 42 Rule 6 of the Civil Procedure Rules were not satisfied.
[12] Lastly, the respondent pointed out that the intended appeal is in respect of a dismissal order, which is a negative order. He submitted that such an order cannot be stayed and that this is the reason why the applicant is seeking an order of injunction instead. He therefore posited that, under those circumstances, the applicant cannot claim that she will suffer substantial loss since the court did not order any party to do anything. He relied on Kimondo & another v Progressive Credit Ltd (Civil Appeal 49 or 2023) 120251 KEIIC 7297 (KLR) and urged for the dismissal of the application dated 25 th February 2026.
[13] The background facts are not in dispute and need no belabouring. The applicant filed this suit by way or Originating Summons for division of matrimonial property and her entire suit was struck out on 16 th October 2024 for having been filed prematurely, upon a preliminary objection being raised by the respondent. Being aggrieved by that decision, the applicant filed a Notice of Appeal dated 23 rd October 2024, evincing her intention to file an appeal to the Court of Appeal against the ruling dated 18 th October 2024. She also filed the instant application seeking for injunction pending appeal.
[14] Having taken into consideration the grounds upon which the application has been brought, the response thereto by the respondent and the written submissions filed herein by learned counsel for the parties, the issues for determination are as follows:
[a] Whether the Court is functus officio ; and if not,
[b] Whether the applicant has met the conditions for grant of an order of injunction pending appeal.
A. On whether the Court is functus Officio :
[15] The principle of functus officio was considered by the Supreme Court in Raila Odinga & 2 others v Independent Electoral & Boundaries Commission, Ahmed Issack Hassan, Uhuru Kenyatta & William Samoei Ruto (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling) , where court cited with approval an excerpt from an article by Daniel Malan Pretorius , in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832 stating:
“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”
[16] Similarly, in Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) (supra) , the Court of Appeal held as follows on the functus officio doctrine:
“ Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognized in the common law tradition from as long ago as the latter part of the 19 th 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);
“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:
Where there had been a slip in drawing it up, and,
Where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186”
[17] Hence, it is trite that the court does not become functus officio merely because it has delivered a final decision in civil proceedings, for it retains the jurisdiction to correct errors under the slip rule and for review under Section 80 of the Civil Procedure Act. In this regard, I agree entirely with the position taken in Leisure Lodge Ltd v Japhet Asige and another [2018] eKLR that:
“On the question that this court is functus officio , I do find that a trial court retains the duty and jurisdiction to undertake and handle all incidental proceedings even after a final judgment is delivered provided such proceedings do not amount to re-trying the cause but geared towards bringing the litigation to an end. That is the reason, the court must undertake settlement of a decree, if parties cannot agree, handle applications for stay, review, setting aside and even execution proceeding including applications under Section 94 of the Act. In Mombasa Bricks & Tiles Ltd & 5 Others vs Arvind Shah & 7 Others [2018] eKLR, this court said of the doctrine of functus officio: -
“I understand the doctrine, like its sister, the res- judicata rule to seek to achieve finality in litigation. It is a way of a court saying, ‘I have done my part as far as the determination of the merits are concerned hence let some other court deal with it at a different level’. It is designed to discourage reopening a matter before the same court that has considered a dispute and rendered its verdict on the merits.
It however does not command that the moment the court delivers its judgment in a matter then it becomes an abomination to handle all and every other consequent, complementary, supplementary and necessary facilitative processes.
As was held by the court of Appeal in Telkom Kenya Ltd vs John Ochanda, the bar is only upon merit-based decisional engagement. To say otherwise would be to leave litigants with impotent decision incapable of realization towards closure of the file.
Put in the context of the application before me, I do not consider the Decree/holder to ask the court to rehear and make a decision about the disputes in the file on the merits.
I understand the decree-holder /applicant to be saying that the judgment of the court that gave timelines for compliance remains unattended by the judgment debtor. That is not merit based decision on the dispute that has been determined in the suit. The decree holder is merely asking the court to remind the judgment -debtor that they have a judgment debt to settle as far as delivery of share certificates is concerned. That has more to do with moving the file towards closure and making the judgment final rather than re-opening the dispute for determination on the merits. I decline to hold that the court has become functus officio. This is because I consider that there are several proceedings that can only be undertaken after judgment and not before.
The following are just but examples:
• Application for stay
• Application to correct the decree
• Application for accounts
• Application for execution including garnishee applications
• Applications for review
• Application under section 34 of the Act
If one was to accede to the position taken by the judgment debtor that the court is functus officio then it would mean that the provisions of law providing for such proceedings are otiose or just decorative and of no substance to the administration of justice. As far as the application before the court is concerned, the court is well seized of power and jurisdiction to entertain and determine same on the merit and based on materials availed ”.
[18] I therefore find no merit in the submission that the Court is functus officio .
B. On whether the applicant has met the conditions for grant of an order of injunction pending appeal:
[19] The application is expressed to have been brought under Order Order 42 Rule 6(1) of the Civil Procedure Rules is explicit that:
“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the Court appealed from may for sufficient cause order stay of execution of such decree or order , and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”
[20] First and foremost, it is plain from the foregoing that the jurisdiction to grant stay of execution is not just bestowed on the court appealed to, but also to the court appealed from; and therefore the argument by the respondent that the application can only be entertained in the appellate court lacks traction.
[21] Secondly, while the above mention of injunctive orders pending appeal, it is now settled that the court appealed from has the power to issue injunctive orders pending appeal with a view of preserving the subject matter of the appeal, where sufficient cause is shown. Hence, in Erinford Properties v Cheshire County Council [1974] 2 AllER 446 it was held that:
“No human being is infallible and for none are there more public and authoritative explanations of their errors than for judges. A judge who feels no doubt in dismissing a claim to an interlocutory injunction may, perfectly consistent with this decision, recognize that his decision might be reversed and that the comparative effects of granting or refusing an injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal.”
[22] The Erinford Principle was followed in Madhupaper International Ltd v Kerr [1985] eKLR wherein the Court of Appeal held as follows in an appeal against dismissal of an application for injunction pending appeal:
The reasoning of the learned judge was, with respect, incorrect. He was referred to Erinford Properties Ltd v Cheshire County Council, [1974] 2 All ER 443 in which Mr Justice Megarry held that where a judge dismissed an application for interlocutory injunction he has jurisdiction to grant the unsuccessful applicant an injunction pending an appeal against the dismissal. It is unnecessary for him to apply to the Court of Appeal for it. There is no inconsistency in doing so. The purpose of granting one having just refused to do it is to prevent the decision of the Court of Appeal being nugatory should it reverse the judge below, which sometimes happens.”
[23] In this respect, the key issue to focus on herein is whether granting the orders sought would inflict more hardship than it would avoid. Indeed, in Patricia Njeri & 3 Others v National Museum of Kenya (supra) Hon. Visram, J. (as he then was) had occasion to consider a similar matter and set out the following guiding principles:
“The Appellants did, however, pray (in the alternative) for an order of injunction pending appeal. There was no dispute that the court can, in a proper case grant an injunction pending appeal. What are the principles that guide the court in dealing with such an application?
In the Venture Capital case (Venture Capital and Credit Ltd –Vs- Consolidated Bank of Kenya Ltd Civil Application No. Nairobi 349 of 2003 (UR)) the Court of Appeal said that an order for injunction pending appeal is a discretionary matter. The discretion must, however, be “exercised judicially and not in a whimsical or arbitrary fashion.” This discretion is guided by certain principles some of which are as follows:
a) The discretion will be exercised against an Applicant whose appeal is frivolous (See Madhupaper International Limited –Vs- Kerr [1985] KLR 840 which cited Venture Capital). The Applicant must state that a reasonable argument can be put forward in support of his appeal (J. K. Industries –Vs-KCB 1982 – 88) KLR 1088 (also cited in Venture Capital.
b) The discretion should be refused where it would inflict greater hardship that it would avoid (See Madhupaper supra).
c) The Applicant must show that to refuse the injunction would render his appeal nugatory (See Butt –Vs- Rent Restriction Tribunal [1982] KLR 417 (cited also in Venture Capital).
d) The Court should also be guided by the principles in Giella –Vs- Cassman Brown & Company Ltd [1973] EA 358 as set out in the case of Shitukha Mwamodo & Others (1986) KLR 445 (also cited in Venture Capital).” See also Mukoma –Vs-Abuoga [1988] KLR 645 .
[24] In this instance, the applicant had already filed a Notice of Appeal by the time the application was filed. She also stated that she has been living on the subject properties for over 40 years; and that she contributed towards the purchase of the assets. It is notable that these averments by the applicant were not rebutted by the respondent. I am therefore satisfied that she has given sufficient reasons to warrant the issuance of the orders prayed for.
[25] In the result, the application dated 25 th February 2025 is hereby allowed and orders given as follows:
[a] THAT an order of injunction be and is hereby granted against the respondent restraining him whether by himself, his servants and/or agents, from selling, leasing, transferring, encumbering, alienating, interfering with and evicting the applicant from land parcels known as Nandi/Mutwot/389, Nandi/Ngechek/650, Nandi/Mutwot/383, Nand1/Ngechek/648, Nandi/Ngechek/435, Nandi/Ngechek/824 and Nandi/Ngechek/975 all situate within Nandi County pending the hearing and determination of the applicant’s appeal to the Court of Appeal against the decision of the Court delivered on 16 th October, 2024.
[b] THAT each party to bear own costs of the application.
It is so ordered
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14 TH DAY OF AUGUST 2026
[a] Spent.
[b] Spent
[c] THAT an order of injunction be issued against the respondent restraining him whether by himself, his servants and/or agents, from selling, leasing, transferring, encumbering, alienating, interfering with and evicting the applicant from land parcels known as Nandi/Mutwot/389, Nandi/Ngechek/650, Nandi/Mutwot/383, Nand1/Ngechek/648, Nandi/Ngechek/435, Nandi/Ngechek/824 and Nandi/Ngechek/975 all situate within Nandi County pending the hearing and determination of the intended appeal to the Court of Appeal against the decision of the Court delivered on 16 th October, 2024.
[d] THAT the costs of the application be provided for.
[2] The application was predicated on the grounds that sufficient cause exists for the issuance of the orders prayed for; and therefore substantial loss would result to the applicant if her prayers are not granted. The applicant further averred that she is ready to give security for the due performance of the orders that will ultimately be given by the Court of Appeal.
[3] The application was supported by the affidavit of the applicant in which she averred that on the 16 th October, 2024, the Court delivered a ruling herein in respect of the Originating Motion dated 12 th October 2023 and the Preliminary Objection dated 8 th November 2023 in which the Court upheld the respondent's Preliminary Objection and thereby dismissed the said Originating Motion and the application dated 12 th October 2023. The applicant explained that, in the said Originating Motion, she had asked for 50% share of the above mentioned pieces of land on the ground that they comprise matrimonial property.
[4] The applicant averred that she was aggrieved by the said decision and has already lodged a Notice of Appeal and applied for certified copies of the proceedings. In her view, the intended appeal raises arguable issues that would merit a pronouncement by the appellate court. She contended that substantial loss will be visited upon her unless the injunction prayed for is granted pending the intended appeal as the respondent will otherwise proceed to interfere and evict her from the suit parcels to her detriment. She also mentioned that she has occupied the suit property for many years now; and that she is willing to comply with whatever conditions the Court may impose as a condition for stay.
[5] The respondent filed Grounds of Opposition dated 16 th May 2025 contending that:
[a] The application is an abuse of the court process.
[b] Upon the delivery of the ruling dated 16 th October 2024, the Court became funtus officio and cannot grant injunctive orders post-delivery of the ruling.
[c] The orders issued were negative in nature and therefore incapable of being stayed as the application purports to seek.
[d] The Court having dismissed the main suit has no jurisdiction to entertain an application for injunction in the same suit.
[e] The application herein and the suit is devoid of merit and should be dismissed with costs to the respondent.
[6] The application was canvassed by way of written submissions pursuant to the directions of the Court on 19 th May 2025. Accordingly, the applicant filed written submissions dated 4 th July 2025. She relied on Giella v Cassman Brown & Co. Ltd [1973] E A 358 and urged the Court to find that, vide her Supporting Affidavit, she had demonstrated that:
[a] She has a prima facie case with a probability of success.
[b] That she stands to suffer irreparable injury if the injunction is not granted.
[c] That the balance of convenience tilts in her favour.
[7] The applicant further submitted that she has an arguable appeal and relied on Mrao Ltd v First American Bank of Kenya and 2 others [2003] KLR 125 and Moses C. Njoroge & 2 others v Jane W. Lesaloi & 5 others [2014] eKLR. She therefore contended that the Court is properly seized of the application, given that she has already filed a Notice of Appeal from the ruling dated 16 th October 2024 in accordance with Rule 75 of the Court of Appeal Rules. The applicant further submitted that it is sufficient if a single bona fide arguable ground of appeal is raised. She relied on Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai. 345 of 2004.
[8] The applicant further submitted that her appeal will be rendered nugatory unless the order of injunction is granted. She added that, whether or not an appeal will be rendered nugatory depends on whether what is sought to be stopped is reversible; and if so whether damages would reasonably compensate the party aggrieved. The applicant relied on International Laboratory for Research on Animal Diseases v Kinyua [1990] KLR 403 and Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 443 for the proposition that even where a judge has dismissed an application for interlocutory injunction, there remains the jurisdiction to grant the unsuccessful party an injunction pending appeal against the dismissal so as to prevent the appeal from being rendered nugatory.
[9] On the balance of convenience, the applicant urged the Court to take into account that she has occupied and used the suit properties with her children for a period of 40 years; and that there is a likelihood that the respondent will dispose of the properties to third parties and therefore, in the event of a successful appeal the situation may turn out to be irreversible. She also posited that she risks being evicted from the properties that she jointly acquired with the deceased. She therefore urged the Court to ensure the status quo is maintained pending the hearing and determination of her appeal.
[10] On his part, the respondent filed written submissions dated 10 th June 2026. He reiterated his Grounds of Opposition dated 16 th May, 2025 and submitted, on the authority of the Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] that once the Court delivered its ruling on 16 th October. 2024 and dismissed the applicant’s Originating Summons in its entirety, the court became functus officio . and therefore lacks the jurisdiction to entertain an application for stay pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
[11] It was further the submission of the respondent that, under Rule 6 aforementioned, the Court can only exercise jurisdiction to grant an injunction in the exercise of its appellate jurisdiction and therefore the application for injunction ought to have been filed in the Court of Appeal under the Court of Appeal Rules. The respondent also submitted that the application was filed after inordinate delay, granted that the ruling was delivered on 16 th October 2024 and the application was not filed until 25 th February 2025. Hence the respondent argued that, even if the Court had the jurisdiction to grant the orders sought, the conditions for stay under Order 42 Rule 6 of the Civil Procedure Rules were not satisfied.
[12] Lastly, the respondent pointed out that the intended appeal is in respect of a dismissal order, which is a negative order. He submitted that such an order cannot be stayed and that this is the reason why the applicant is seeking an order of injunction instead. He therefore posited that, under those circumstances, the applicant cannot claim that she will suffer substantial loss since the court did not order any party to do anything. He relied on Kimondo & another v Progressive Credit Ltd (Civil Appeal 49 or 2023) 120251 KEIIC 7297 (KLR) and urged for the dismissal of the application dated 25 th February 2026.
[13] The background facts are not in dispute and need no belabouring. The applicant filed this suit by way or Originating Summons for division of matrimonial property and her entire suit was struck out on 16 th October 2024 for having been filed prematurely, upon a preliminary objection being raised by the respondent. Being aggrieved by that decision, the applicant filed a Notice of Appeal dated 23 rd October 2024, evincing her intention to file an appeal to the Court of Appeal against the ruling dated 18 th October 2024. She also filed the instant application seeking for injunction pending appeal.
[14] Having taken into consideration the grounds upon which the application has been brought, the response thereto by the respondent and the written submissions filed herein by learned counsel for the parties, the issues for determination are as follows:
[a] Whether the Court is functus officio ; and if not,
[b] Whether the applicant has met the conditions for grant of an order of injunction pending appeal.
A. On whether the Court is functus Officio :
[15] The principle of functus officio was considered by the Supreme Court in Raila Odinga & 2 others v Independent Electoral & Boundaries Commission, Ahmed Issack Hassan, Uhuru Kenyatta & William Samoei Ruto (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling) , where court cited with approval an excerpt from an article by Daniel Malan Pretorius , in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832 stating:
“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”
[16] Similarly, in Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) (supra) , the Court of Appeal held as follows on the functus officio doctrine:
“ Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognized in the common law tradition from as long ago as the latter part of the 19 th 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);
“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:
Where there had been a slip in drawing it up, and,
Where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186”
[17] Hence, it is trite that the court does not become functus officio merely because it has delivered a final decision in civil proceedings, for it retains the jurisdiction to correct errors under the slip rule and for review under Section 80 of the Civil Procedure Act. In this regard, I agree entirely with the position taken in Leisure Lodge Ltd v Japhet Asige and another [2018] eKLR that:
“On the question that this court is functus officio , I do find that a trial court retains the duty and jurisdiction to undertake and handle all incidental proceedings even after a final judgment is delivered provided such proceedings do not amount to re-trying the cause but geared towards bringing the litigation to an end. That is the reason, the court must undertake settlement of a decree, if parties cannot agree, handle applications for stay, review, setting aside and even execution proceeding including applications under Section 94 of the Act. In Mombasa Bricks & Tiles Ltd & 5 Others vs Arvind Shah & 7 Others [2018] eKLR, this court said of the doctrine of functus officio: -
“I understand the doctrine, like its sister, the res- judicata rule to seek to achieve finality in litigation. It is a way of a court saying, ‘I have done my part as far as the determination of the merits are concerned hence let some other court deal with it at a different level’. It is designed to discourage reopening a matter before the same court that has considered a dispute and rendered its verdict on the merits.
It however does not command that the moment the court delivers its judgment in a matter then it becomes an abomination to handle all and every other consequent, complementary, supplementary and necessary facilitative processes.
As was held by the court of Appeal in Telkom Kenya Ltd vs John Ochanda, the bar is only upon merit-based decisional engagement. To say otherwise would be to leave litigants with impotent decision incapable of realization towards closure of the file.
Put in the context of the application before me, I do not consider the Decree/holder to ask the court to rehear and make a decision about the disputes in the file on the merits.
I understand the decree-holder /applicant to be saying that the judgment of the court that gave timelines for compliance remains unattended by the judgment debtor. That is not merit based decision on the dispute that has been determined in the suit. The decree holder is merely asking the court to remind the judgment -debtor that they have a judgment debt to settle as far as delivery of share certificates is concerned. That has more to do with moving the file towards closure and making the judgment final rather than re-opening the dispute for determination on the merits. I decline to hold that the court has become functus officio. This is because I consider that there are several proceedings that can only be undertaken after judgment and not before.
The following are just but examples:
• Application for stay
• Application to correct the decree
• Application for accounts
• Application for execution including garnishee applications
• Applications for review
• Application under section 34 of the Act
If one was to accede to the position taken by the judgment debtor that the court is functus officio then it would mean that the provisions of law providing for such proceedings are otiose or just decorative and of no substance to the administration of justice. As far as the application before the court is concerned, the court is well seized of power and jurisdiction to entertain and determine same on the merit and based on materials availed ”.
[18] I therefore find no merit in the submission that the Court is functus officio .
B. On whether the applicant has met the conditions for grant of an order of injunction pending appeal:
[19] The application is expressed to have been brought under Order Order 42 Rule 6(1) of the Civil Procedure Rules is explicit that:
“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the Court appealed from may for sufficient cause order stay of execution of such decree or order , and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”
[20] First and foremost, it is plain from the foregoing that the jurisdiction to grant stay of execution is not just bestowed on the court appealed to, but also to the court appealed from; and therefore the argument by the respondent that the application can only be entertained in the appellate court lacks traction.
[21] Secondly, while the above mention of injunctive orders pending appeal, it is now settled that the court appealed from has the power to issue injunctive orders pending appeal with a view of preserving the subject matter of the appeal, where sufficient cause is shown. Hence, in Erinford Properties v Cheshire County Council [1974] 2 AllER 446 it was held that:
“No human being is infallible and for none are there more public and authoritative explanations of their errors than for judges. A judge who feels no doubt in dismissing a claim to an interlocutory injunction may, perfectly consistent with this decision, recognize that his decision might be reversed and that the comparative effects of granting or refusing an injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal.”
[22] The Erinford Principle was followed in Madhupaper International Ltd v Kerr [1985] eKLR wherein the Court of Appeal held as follows in an appeal against dismissal of an application for injunction pending appeal:
The reasoning of the learned judge was, with respect, incorrect. He was referred to Erinford Properties Ltd v Cheshire County Council, [1974] 2 All ER 443 in which Mr Justice Megarry held that where a judge dismissed an application for interlocutory injunction he has jurisdiction to grant the unsuccessful applicant an injunction pending an appeal against the dismissal. It is unnecessary for him to apply to the Court of Appeal for it. There is no inconsistency in doing so. The purpose of granting one having just refused to do it is to prevent the decision of the Court of Appeal being nugatory should it reverse the judge below, which sometimes happens.”
[23] In this respect, the key issue to focus on herein is whether granting the orders sought would inflict more hardship than it would avoid. Indeed, in Patricia Njeri & 3 Others v National Museum of Kenya (supra) Hon. Visram, J. (as he then was) had occasion to consider a similar matter and set out the following guiding principles:
“The Appellants did, however, pray (in the alternative) for an order of injunction pending appeal. There was no dispute that the court can, in a proper case grant an injunction pending appeal. What are the principles that guide the court in dealing with such an application?
In the Venture Capital case (Venture Capital and Credit Ltd –Vs- Consolidated Bank of Kenya Ltd Civil Application No. Nairobi 349 of 2003 (UR)) the Court of Appeal said that an order for injunction pending appeal is a discretionary matter. The discretion must, however, be “exercised judicially and not in a whimsical or arbitrary fashion.” This discretion is guided by certain principles some of which are as follows:
a) The discretion will be exercised against an Applicant whose appeal is frivolous (See Madhupaper International Limited –Vs- Kerr [1985] KLR 840 which cited Venture Capital). The Applicant must state that a reasonable argument can be put forward in support of his appeal (J. K. Industries –Vs-KCB 1982 – 88) KLR 1088 (also cited in Venture Capital.
b) The discretion should be refused where it would inflict greater hardship that it would avoid (See Madhupaper supra).
c) The Applicant must show that to refuse the injunction would render his appeal nugatory (See Butt –Vs- Rent Restriction Tribunal [1982] KLR 417 (cited also in Venture Capital).
d) The Court should also be guided by the principles in Giella –Vs- Cassman Brown & Company Ltd [1973] EA 358 as set out in the case of Shitukha Mwamodo & Others (1986) KLR 445 (also cited in Venture Capital).” See also Mukoma –Vs-Abuoga [1988] KLR 645 .
[24] In this instance, the applicant had already filed a Notice of Appeal by the time the application was filed. She also stated that she has been living on the subject properties for over 40 years; and that she contributed towards the purchase of the assets. It is notable that these averments by the applicant were not rebutted by the respondent. I am therefore satisfied that she has given sufficient reasons to warrant the issuance of the orders prayed for.
[25] In the result, the application dated 25 th February 2025 is hereby allowed and orders given as follows:
[a] THAT an order of injunction be and is hereby granted against the respondent restraining him whether by himself, his servants and/or agents, from selling, leasing, transferring, encumbering, alienating, interfering with and evicting the applicant from land parcels known as Nandi/Mutwot/389, Nandi/Ngechek/650, Nandi/Mutwot/383, Nand1/Ngechek/648, Nandi/Ngechek/435, Nandi/Ngechek/824 and Nandi/Ngechek/975 all situate within Nandi County pending the hearing and determination of the applicant’s appeal to the Court of Appeal against the decision of the Court delivered on 16 th October, 2024.
[b] THAT each party to bear own costs of the application.
It is so ordered
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14 TH DAY OF AUGUST 2026