1. Before this Court for determination is the Applicant/Advocate Notice of Preliminary Objection dated 31st August 2026. The objection seeks to oust the jurisdiction of the Court to entertain the Applicant’s Notice of Motion dated 26th August 2026. The applicant/advocate contend that the issue of stay of execution was already determined by the Court on 10th April 2026 when it granted a stay of execution for a period of 90 days, which period has since lapsed. It is therefore the applicant/advocate case that the Court lacks jurisdiction to entertain the application dated 26th August 2026 or grant orders similar to those previously been issued.
2. The applicant/advocate further contend that the Court is functus officio and therefore cannot entertain the motion for a second time. Consequently, they argue that the application ought to be struck out or dismissed ex debito justitiae. The jurisdictional objection is also premised on the applicant/advocate’s’ contention that the 1st Respondent, Kenya Continental Hotel Limited is a separate and distinct limited liability company from the estate of the late James K. Nderitu and is independently liable for its obligations. The applicant/advocate therefore challenge the Respondents reliance on the pending succession proceedings as a basis for seeking stay of execution and related orders against the 1st Respondent.
3. In response to the Preliminary Objection, the respondent/applicant, through the Replying Affidavit sworn by Anne Wanjiru Nderitu, disputed the applicant/advocate’ characterization of the orders issued on 10th April 2026, maintaining that the Court granted an interim stay of execution to enable the parties to obtain the status of Nairobi High Court Family & Probate Cause No. E224 of 2023. The applicant contended that, although the matter was scheduled for mention on 20th July 2026, it was neither listed nor mentioned on that date, thereby necessitating the fixing of a fresh date.
4. The respondent further maintained that the shares and assets of the 1st respondent are the subject of the succession proceedings and that they lack the legal authority to settle the Respondents’ debt pending confirmation of the Grant, as doing so would amount to intermeddling with the estate of the deceased. The respondents deny the allegation that other service providers had been paid, contending that no evidence had been furnished in support of that assertion. The respondents also clarifies that, reliance on section 86 of the Law of Succession Act does not entail distributing the estate before payment of its debts, but rather that any such payments cannot lawfully be made pending confirmation of the Grant.
5. The respondents further disputed the allegation that it misled the Court by referring to the succession proceedings. They point out that the applicant/advocate themselves have substantially participated in the succession cause, having filed a Caveat, Affidavit of Protest and a Notice of Preliminary Objection dated 18th October 2023. The respondent consequently maintains that the applicant/advocate were fully aware of the succession proceedings and the issues concerning the deceased’s estate.
6. For context, the application dated 26th August 2026 filed by the respondents seeks, an order staying execution of the Ruling and Decree of Hon. Lady Justice Njoki Mwangi dated 10th April 2026, as well as the the attachment and sale of the 1st Respondent’s movable property, pending the hearing and determination of the succession proceedings in Nairobi High Court Family Division P&A No. E224 of 2023. The application is premised, inter alia, on the contention that the 1st respondent’s assets form part of the estate of the late James K. Nderitu in respect of which the 2nd respondent is an executor; that the applicant/advocate has lodged a claim in the succession proceedings which remains unresolved; and that the attachment of the 1st respondent’s assets would amount to intermeddling with the deceased’s estate contrary to section 45 of the Law of Succession Act. The respondents further contend that the objection in the succession cause is currently undergoing mediation and that there is an imminent risk of the proclaimed property being sold by public auction.
7. Pursuant to the court’s directions on 1st September 2026, parties were directed to file written submissions in canvassing the preliminary objection. The applicant/advocate submissions are dated 1st September 2026 and 7th September 2026 while the respondent’s submissions are dated 3rd September 2026.
Applicant/Advocate submissions
8. In support of the Preliminary Objection, the applicant/advocate submitted that there is no provision under the Civil Procedure Act and the Rules permitting the respondents to file a Replying Affidavit in response to Grounds of Opposition or a Preliminary Objection. The applicant/advocate therefore urged the Court to strike out or disregard the said affidavit.
9. On the substance of the objection, counsel submitted that the Court lacks jurisdiction to grant a stay of execution in the absence of a pending Reference or Appeal against the taxation. The applicant/advocate relied on the case of Francis Kabaa v Nancy Wambui & Another [1996] eKLR and the case of Multiline Motors (K) Ltd v Migori County Government [2021] eKLR. Counsel consequently argued that the present application for stay is not anchored on any pending appeal or Reference and therefore cannot be granted.
10. It was further submitted that the pending succession proceedings concern only the estate of the deceased, who is one of the judgment debtors, whereas the other judgment debtors are limited liability companies which are separate legal entities and remain independently liable for their respective debts and liabilities. Counsel therefore urged the court to set aside or vacate the ex parte stay orders and allow execution to proceed against the assets of the judgment debtor companies.
11. In submissions dated 7th September 2026, the applicant/advocate submitted in response to the respondents’ submissions that the orders for stay of execution granted by the court on 10th April 2026 were made pending the filing of a formal application. Counsel urged the court to verify the court records of the proceedings. While referring to Order 42 Rule 6 of the Civil Procedure Rules, the applicant/advocate submitted that an application for stay under that provision can only be made orally or formally pending the filing of an appeal. Counsel contended that, in the present proceedings, there is no pending appeal and consequently, the Applicants cannot invoke the provisions of Order 42 Rule 6.
Respondents’ submissions
12. In opposing the Preliminary Objection, the respondent/applicants submitted that the objection is misconceived as no formal application for stay had been made when the court granted the orders of 10th April 2026. They contended that pursuant to Order 42 Rule 6(2) and (3) of the Civil Procedure Rules, an application for stay may be made orally immediately following delivery of a ruling and that the present formal application was subsequently filed on 26th August 2026. The respondents therefore argued that the court had not previously determined a formal application for stay and was consequently not functus officio. Reliance was placed on Ali v Mistry v Naran Mulji & Company [2024] KEELRC 13646 (KLR) in support of the proposition that the present application is distinguishable from the earlier proceedings.
13. The respondents further submitted that the present application is substantially different from the earlier application and that the doctrine of res judicata and functus officio do not arise. In support of this position, reliance was placed on Kisilu & Kind Medical Services v Transwide Pharmaceuticals Ltd & another [2026] KEHC 1238 (KLR). Theymaintained that the court therefore retains jurisdiction to determine the orders sought in the present application.
14. On the alleged abuse of the court process, the respondents submitted that the applicant/advocate was aware of the succession proceedings and had itself lodged a caveat, Affidavit of Protest and Notice of Preliminary Objection therein. It was therefore argued that the applicant/advocate decision to proceed with execution against assets allegedly forming part of the deceased’s estate while simultaneously participating in the succession proceedings, constituted an abuse of the court process. The respondents relied on the Supreme Court decision in Nairobi Bottlers Limited v Ndungu & another [2023] KESC 96 (KLR).
15. The respondents also disputed the applicant/advocate contention that execution against the assets was permissible, arguing that such attachment amounted to intermeddling with the property of the deceased contrary to section 45 of the Law of Succession Act. They contended that the applicant/advocate insistence on execution in the circumstances was contrary to the pending succession proceedings and sought to sanitise what they considered unlawful intermeddling. In support of the legal position on intermeddling, the respondents relied on In re Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR. The respondents consequently urged the Court to find that the Preliminary Objection lacks merit and should be dismissed with costs.
Analysis and Determination
16. I have carefully considered the preliminary objection and the parties’ written submissions. In my view, the issues for determination are:
a.) Whether the Preliminary Objection raises pure points of law capable of determination at a preliminary stage;
b.) Whether the applicant/advocate has established that this court lacks jurisdiction and is functus officio.
17. The starting point is the nature and scope of a preliminary objection. The principles are settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, the Court of Appeal stated that a preliminary objection raises a pure point of law which is argued on the assumption that the facts pleaded by the opposite party are correct and cannot be raised where any fact requires to be ascertained or where the Court is called upon to exercise judicial discretion. The Supreme Court has subsequently affirmed this principle, while the courts have consistently held that an objection founded on contested factual matters does not qualify as a proper preliminary objection.
18. The applicant/advocate Preliminary objection is principally that this court lacks jurisdiction to entertain the respondents application dated 26th August 2026 because the issue of stay had already been determined on 10th April 2026, the period of stay granted by the court has since expired and there is no pending appeal or reference upon which the Applicants can invoke the jurisdiction of the court under Order 42 Rule 6 of the Civil Procedure Rules. The applicant/advocate further contends that the Court is consequently functus officio. I will therefore consider these contentions against the record of the proceedings of 10th April 2026.
19. Following delivery of the ruling, counsel for the respondents sought a stay of execution for 60 days on the basis that the directors of the 1st Respondent were deceased and that the 2nd Respondents, being executors of the deceased's estate, were awaiting finalisation of the succession proceedings. Counsel for the applicant/advocate, on his part, stated that he had no instructions to oppose the stay of execution. The court thereafter granted a stay of execution of the ruling until 20th July 2026.
20. It is therefore apparent from the record that the stay granted on 10th April 2026 was a temporary order limited to the period ending 20th July 2026. More importantly, there is nothing in the proceedings to suggest that the court was determining a formal application for stay pending an appeal or that the order was predicated upon the existence of a pending appeal or reference. Rather the order was made immediately following delivery of the ruling and in circumstances where counsel for the applicant/advocate indicated that he had no instructions to oppose the request. Indeed, no formal application for stay had been filed at that stage. I therefore do not agree with the applicant/advocate characterization of the order of 10th April 2026 as one made pursuant to Order 42 Rule 6 of the Civil Procedure Rules. Properly viewed, the order itself was an interim and time bound measure intended to preserve status quo and afford the parties an opportunity to regularize their position, including the filing of an appropriate application where necessary
21. The applicant/advocate/ reliance on Order 42 Rule 6 of the Civil Procedure Rules must also be considered in its proper context. That provision governs stay of execution in case of appeal. The rule contemplates the existence of an appeal as the basis upon which the jurisdiction to grant stay pending appeal is exercised. Recent jurisprudence has similarly emphasised that an application under Order 42 Rule 6 is anchored on the existence of an appeal.
22. However, the absence of a pending appeal does not establish that this court has no jurisdiction whatsoever over the execution of its own decree. The Civil Procedure Rules recognise other circumstances in which a court may stay execution. For example, Order 22 Rule 22 empowers the court to which a decree has been sent for execution, upon sufficient cause being shown, to stay execution for a reasonable time to enable the judgment-debtor to seek appropriate orders from the court which passed the decree or from a court having appellate jurisdiction. The jurisprudence recognises Order 22 Rule 22 as a distinct provision from the stay pending appeal contemplated under Order 42 Rule 6.
23. I therefore find that the applicant/advocate proposition that the absence of a pending appeal, without more, completely ousted this court's jurisdiction over the execution of its own decree is overstated. Whether the respondents have invoked the appropriate procedural mechanism, and whether they satisfy the legal requirement for the orders sought, are matters that go to the merits of the application. They do not, in the circumstances of this case, establish a jurisdictional bar capable of disposing of the application at a preliminary stage.
24. The applicant/advocate second principal contention is that this court is functus officio because it previously granted a stay of execution on 10th April 2026. The doctrine of functus officio is founded on the principle of finality and generally prevents a court from reopening and substantively reconsidering a matter which it has finally determined. It does not, however, mean that a court is incapable of dealing with every subsequent or incidental matter arising from a judgment or order. The courts have recognised that the doctrine principally bars a merit-based re-engagement with a matter after final determination.
25. In the present case, the order of 10th April 2026 did not constitute a determination of the present Motion dated 26th August 2026. It was a temporary stay granted for a specific period following an oral application made immediately after delivery of the ruling. The order expired by effluxion of time on 20th July 2026. Its expiry did not amount to a final determination of all future issues concerning execution nor did it render this court functus officio in relation to subsequent applications arising from the decree.
26. This distinction in is important. The doctrine of functus officio would undoubtedly arise if the respondents were inviting this court to reopen, review, or sit on appeal over the substantive determination delivered on 10th April 2026. That, is not the case here. The present application concerns relief relating to execution of the decree and does not seek to revisit or alter the merits of the Court’s earlier decision. The fact that a court has rendered a decision does not deprive it authority to determine subsequent procedural or incidental applications arising from that decision. Consequently, the existence and expiry of the temporary stay granted on 10th April 2026 do not, without more, trigger the doctrine of functus officio.
27. I also find it necessary to address the applicant/advocate contention that the 1st Respondent is a separate legal entity from the estate of the deceased. While the doctrine of separate corporate personality is undoubtedly a question of law, the application of that doctrine to the facts of this case is not. Whether the assets targeted for execution belong to the 1st respondent, form part of the deceased's estate, or are otherwise affected by the succession proceedings are matters that require evidentiary interrogation. Such issues cannot be resolved on the assumption that the facts asserted by one party are correct. They therefore fall outside the scope of a proper preliminary objection as contemplated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. The same is true of the parties' competing assertions concerning ownership of the assets, the status of the succession proceedings, allegations of intermeddling, and the effect of the pending succession cause. These are evidentiary matters that may be relevant to the substantive application but cannot properly found a preliminary objection.
28. In the final analysis, the applicant/advocate has failed to demonstrate that this Court lacks jurisdiction or that it is functus officio. The objection invites the Court to delve into contested factual matters and to determine issues that are more appropriately addressed within the substantive application itself. To that extent, it does not raise pure points of law capable of disposing of the proceedings within the meaning of Mukisa Biscuit. Consequently, I find that the Preliminary Objection dated 31st August 2026 is devoid of merit and is hereby dismissed. The costs thereof shall abide the outcome of the Notice of Motion dated 26th August 2026.
Orders accordingly.
2. The applicant/advocate further contend that the Court is functus officio and therefore cannot entertain the motion for a second time. Consequently, they argue that the application ought to be struck out or dismissed ex debito justitiae. The jurisdictional objection is also premised on the applicant/advocate’s’ contention that the 1st Respondent, Kenya Continental Hotel Limited is a separate and distinct limited liability company from the estate of the late James K. Nderitu and is independently liable for its obligations. The applicant/advocate therefore challenge the Respondents reliance on the pending succession proceedings as a basis for seeking stay of execution and related orders against the 1st Respondent.
3. In response to the Preliminary Objection, the respondent/applicant, through the Replying Affidavit sworn by Anne Wanjiru Nderitu, disputed the applicant/advocate’ characterization of the orders issued on 10th April 2026, maintaining that the Court granted an interim stay of execution to enable the parties to obtain the status of Nairobi High Court Family & Probate Cause No. E224 of 2023. The applicant contended that, although the matter was scheduled for mention on 20th July 2026, it was neither listed nor mentioned on that date, thereby necessitating the fixing of a fresh date.
4. The respondent further maintained that the shares and assets of the 1st respondent are the subject of the succession proceedings and that they lack the legal authority to settle the Respondents’ debt pending confirmation of the Grant, as doing so would amount to intermeddling with the estate of the deceased. The respondents deny the allegation that other service providers had been paid, contending that no evidence had been furnished in support of that assertion. The respondents also clarifies that, reliance on section 86 of the Law of Succession Act does not entail distributing the estate before payment of its debts, but rather that any such payments cannot lawfully be made pending confirmation of the Grant.
5. The respondents further disputed the allegation that it misled the Court by referring to the succession proceedings. They point out that the applicant/advocate themselves have substantially participated in the succession cause, having filed a Caveat, Affidavit of Protest and a Notice of Preliminary Objection dated 18th October 2023. The respondent consequently maintains that the applicant/advocate were fully aware of the succession proceedings and the issues concerning the deceased’s estate.
6. For context, the application dated 26th August 2026 filed by the respondents seeks, an order staying execution of the Ruling and Decree of Hon. Lady Justice Njoki Mwangi dated 10th April 2026, as well as the the attachment and sale of the 1st Respondent’s movable property, pending the hearing and determination of the succession proceedings in Nairobi High Court Family Division P&A No. E224 of 2023. The application is premised, inter alia, on the contention that the 1st respondent’s assets form part of the estate of the late James K. Nderitu in respect of which the 2nd respondent is an executor; that the applicant/advocate has lodged a claim in the succession proceedings which remains unresolved; and that the attachment of the 1st respondent’s assets would amount to intermeddling with the deceased’s estate contrary to section 45 of the Law of Succession Act. The respondents further contend that the objection in the succession cause is currently undergoing mediation and that there is an imminent risk of the proclaimed property being sold by public auction.
7. Pursuant to the court’s directions on 1st September 2026, parties were directed to file written submissions in canvassing the preliminary objection. The applicant/advocate submissions are dated 1st September 2026 and 7th September 2026 while the respondent’s submissions are dated 3rd September 2026.
Applicant/Advocate submissions
8. In support of the Preliminary Objection, the applicant/advocate submitted that there is no provision under the Civil Procedure Act and the Rules permitting the respondents to file a Replying Affidavit in response to Grounds of Opposition or a Preliminary Objection. The applicant/advocate therefore urged the Court to strike out or disregard the said affidavit.
9. On the substance of the objection, counsel submitted that the Court lacks jurisdiction to grant a stay of execution in the absence of a pending Reference or Appeal against the taxation. The applicant/advocate relied on the case of Francis Kabaa v Nancy Wambui & Another [1996] eKLR and the case of Multiline Motors (K) Ltd v Migori County Government [2021] eKLR. Counsel consequently argued that the present application for stay is not anchored on any pending appeal or Reference and therefore cannot be granted.
10. It was further submitted that the pending succession proceedings concern only the estate of the deceased, who is one of the judgment debtors, whereas the other judgment debtors are limited liability companies which are separate legal entities and remain independently liable for their respective debts and liabilities. Counsel therefore urged the court to set aside or vacate the ex parte stay orders and allow execution to proceed against the assets of the judgment debtor companies.
11. In submissions dated 7th September 2026, the applicant/advocate submitted in response to the respondents’ submissions that the orders for stay of execution granted by the court on 10th April 2026 were made pending the filing of a formal application. Counsel urged the court to verify the court records of the proceedings. While referring to Order 42 Rule 6 of the Civil Procedure Rules, the applicant/advocate submitted that an application for stay under that provision can only be made orally or formally pending the filing of an appeal. Counsel contended that, in the present proceedings, there is no pending appeal and consequently, the Applicants cannot invoke the provisions of Order 42 Rule 6.
Respondents’ submissions
12. In opposing the Preliminary Objection, the respondent/applicants submitted that the objection is misconceived as no formal application for stay had been made when the court granted the orders of 10th April 2026. They contended that pursuant to Order 42 Rule 6(2) and (3) of the Civil Procedure Rules, an application for stay may be made orally immediately following delivery of a ruling and that the present formal application was subsequently filed on 26th August 2026. The respondents therefore argued that the court had not previously determined a formal application for stay and was consequently not functus officio. Reliance was placed on Ali v Mistry v Naran Mulji & Company [2024] KEELRC 13646 (KLR) in support of the proposition that the present application is distinguishable from the earlier proceedings.
13. The respondents further submitted that the present application is substantially different from the earlier application and that the doctrine of res judicata and functus officio do not arise. In support of this position, reliance was placed on Kisilu & Kind Medical Services v Transwide Pharmaceuticals Ltd & another [2026] KEHC 1238 (KLR). Theymaintained that the court therefore retains jurisdiction to determine the orders sought in the present application.
14. On the alleged abuse of the court process, the respondents submitted that the applicant/advocate was aware of the succession proceedings and had itself lodged a caveat, Affidavit of Protest and Notice of Preliminary Objection therein. It was therefore argued that the applicant/advocate decision to proceed with execution against assets allegedly forming part of the deceased’s estate while simultaneously participating in the succession proceedings, constituted an abuse of the court process. The respondents relied on the Supreme Court decision in Nairobi Bottlers Limited v Ndungu & another [2023] KESC 96 (KLR).
15. The respondents also disputed the applicant/advocate contention that execution against the assets was permissible, arguing that such attachment amounted to intermeddling with the property of the deceased contrary to section 45 of the Law of Succession Act. They contended that the applicant/advocate insistence on execution in the circumstances was contrary to the pending succession proceedings and sought to sanitise what they considered unlawful intermeddling. In support of the legal position on intermeddling, the respondents relied on In re Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR. The respondents consequently urged the Court to find that the Preliminary Objection lacks merit and should be dismissed with costs.
Analysis and Determination
16. I have carefully considered the preliminary objection and the parties’ written submissions. In my view, the issues for determination are:
a.) Whether the Preliminary Objection raises pure points of law capable of determination at a preliminary stage;
b.) Whether the applicant/advocate has established that this court lacks jurisdiction and is functus officio.
17. The starting point is the nature and scope of a preliminary objection. The principles are settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, the Court of Appeal stated that a preliminary objection raises a pure point of law which is argued on the assumption that the facts pleaded by the opposite party are correct and cannot be raised where any fact requires to be ascertained or where the Court is called upon to exercise judicial discretion. The Supreme Court has subsequently affirmed this principle, while the courts have consistently held that an objection founded on contested factual matters does not qualify as a proper preliminary objection.
18. The applicant/advocate Preliminary objection is principally that this court lacks jurisdiction to entertain the respondents application dated 26th August 2026 because the issue of stay had already been determined on 10th April 2026, the period of stay granted by the court has since expired and there is no pending appeal or reference upon which the Applicants can invoke the jurisdiction of the court under Order 42 Rule 6 of the Civil Procedure Rules. The applicant/advocate further contends that the Court is consequently functus officio. I will therefore consider these contentions against the record of the proceedings of 10th April 2026.
19. Following delivery of the ruling, counsel for the respondents sought a stay of execution for 60 days on the basis that the directors of the 1st Respondent were deceased and that the 2nd Respondents, being executors of the deceased's estate, were awaiting finalisation of the succession proceedings. Counsel for the applicant/advocate, on his part, stated that he had no instructions to oppose the stay of execution. The court thereafter granted a stay of execution of the ruling until 20th July 2026.
20. It is therefore apparent from the record that the stay granted on 10th April 2026 was a temporary order limited to the period ending 20th July 2026. More importantly, there is nothing in the proceedings to suggest that the court was determining a formal application for stay pending an appeal or that the order was predicated upon the existence of a pending appeal or reference. Rather the order was made immediately following delivery of the ruling and in circumstances where counsel for the applicant/advocate indicated that he had no instructions to oppose the request. Indeed, no formal application for stay had been filed at that stage. I therefore do not agree with the applicant/advocate characterization of the order of 10th April 2026 as one made pursuant to Order 42 Rule 6 of the Civil Procedure Rules. Properly viewed, the order itself was an interim and time bound measure intended to preserve status quo and afford the parties an opportunity to regularize their position, including the filing of an appropriate application where necessary
21. The applicant/advocate/ reliance on Order 42 Rule 6 of the Civil Procedure Rules must also be considered in its proper context. That provision governs stay of execution in case of appeal. The rule contemplates the existence of an appeal as the basis upon which the jurisdiction to grant stay pending appeal is exercised. Recent jurisprudence has similarly emphasised that an application under Order 42 Rule 6 is anchored on the existence of an appeal.
22. However, the absence of a pending appeal does not establish that this court has no jurisdiction whatsoever over the execution of its own decree. The Civil Procedure Rules recognise other circumstances in which a court may stay execution. For example, Order 22 Rule 22 empowers the court to which a decree has been sent for execution, upon sufficient cause being shown, to stay execution for a reasonable time to enable the judgment-debtor to seek appropriate orders from the court which passed the decree or from a court having appellate jurisdiction. The jurisprudence recognises Order 22 Rule 22 as a distinct provision from the stay pending appeal contemplated under Order 42 Rule 6.
23. I therefore find that the applicant/advocate proposition that the absence of a pending appeal, without more, completely ousted this court's jurisdiction over the execution of its own decree is overstated. Whether the respondents have invoked the appropriate procedural mechanism, and whether they satisfy the legal requirement for the orders sought, are matters that go to the merits of the application. They do not, in the circumstances of this case, establish a jurisdictional bar capable of disposing of the application at a preliminary stage.
24. The applicant/advocate second principal contention is that this court is functus officio because it previously granted a stay of execution on 10th April 2026. The doctrine of functus officio is founded on the principle of finality and generally prevents a court from reopening and substantively reconsidering a matter which it has finally determined. It does not, however, mean that a court is incapable of dealing with every subsequent or incidental matter arising from a judgment or order. The courts have recognised that the doctrine principally bars a merit-based re-engagement with a matter after final determination.
25. In the present case, the order of 10th April 2026 did not constitute a determination of the present Motion dated 26th August 2026. It was a temporary stay granted for a specific period following an oral application made immediately after delivery of the ruling. The order expired by effluxion of time on 20th July 2026. Its expiry did not amount to a final determination of all future issues concerning execution nor did it render this court functus officio in relation to subsequent applications arising from the decree.
26. This distinction in is important. The doctrine of functus officio would undoubtedly arise if the respondents were inviting this court to reopen, review, or sit on appeal over the substantive determination delivered on 10th April 2026. That, is not the case here. The present application concerns relief relating to execution of the decree and does not seek to revisit or alter the merits of the Court’s earlier decision. The fact that a court has rendered a decision does not deprive it authority to determine subsequent procedural or incidental applications arising from that decision. Consequently, the existence and expiry of the temporary stay granted on 10th April 2026 do not, without more, trigger the doctrine of functus officio.
27. I also find it necessary to address the applicant/advocate contention that the 1st Respondent is a separate legal entity from the estate of the deceased. While the doctrine of separate corporate personality is undoubtedly a question of law, the application of that doctrine to the facts of this case is not. Whether the assets targeted for execution belong to the 1st respondent, form part of the deceased's estate, or are otherwise affected by the succession proceedings are matters that require evidentiary interrogation. Such issues cannot be resolved on the assumption that the facts asserted by one party are correct. They therefore fall outside the scope of a proper preliminary objection as contemplated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. The same is true of the parties' competing assertions concerning ownership of the assets, the status of the succession proceedings, allegations of intermeddling, and the effect of the pending succession cause. These are evidentiary matters that may be relevant to the substantive application but cannot properly found a preliminary objection.
28. In the final analysis, the applicant/advocate has failed to demonstrate that this Court lacks jurisdiction or that it is functus officio. The objection invites the Court to delve into contested factual matters and to determine issues that are more appropriately addressed within the substantive application itself. To that extent, it does not raise pure points of law capable of disposing of the proceedings within the meaning of Mukisa Biscuit. Consequently, I find that the Preliminary Objection dated 31st August 2026 is devoid of merit and is hereby dismissed. The costs thereof shall abide the outcome of the Notice of Motion dated 26th August 2026.
Orders accordingly.