Republic v Chairman Western Province Provincial Land Appeals Committee,Felister Andati Odera & Euphamia N. Makokha (Miscellaneous Application 242 of 2000) [2018] KEELC 4272 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should entertain a motion by parties in contempt of a prior court order of 16/5/2016
- 2.Whether a suit dismissed under Order 17 rule 2 of the Civil Procedure Rules can be revived by way of review
Key legal issues
#Effect of contempt of a prior court order on a party's right to be heard
The court refused to entertain the applicants' motion because they had disobeyed the order of 16/5/2016 requiring them to fix the application for hearing and pay adjournment fees
The parties were ordered on 16/5/2016 to fix their application for hearing within 30 days and to pay Kshs.1,000/= each as adjournment fees. They neither complied nor paid. The court held that parties who persist in contempt with impunity cannot invoke the court's discretion in their favour.
Functus officio following automatic dismissal under Order 17 rule 2
Once a suit is dismissed under Order 17 rule 2, the court is functus officio and the only recourse open to the aggrieved party is an appeal
The suit was dismissed on 22/5/2017 under Order 17 rule 2 after the parties failed to attend a dismissal notice. The court held that a dismissal made on the court's own initiative under that rule exhausts its jurisdiction, leaving appeal as the only remedy; review does not lie.
Legal principles established
#- A party in contempt of a court order may not be heard by the court until the contempt is purged
- A court becomes functus officio upon dismissal of a suit under Order 17 rule 2 of the Civil Procedure Rules; the remedy is appeal, not review
Court orders
#- 1.The Motion dated 2/12/2015 seeking to review, vary and/or set aside the orders of 22/5/2017 is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent review jurisdiction under the Civil Procedure Rules; dismissal order made under Order 17 rule 2 of the Civil Procedure Rules
Relief refused
#Review, variation and/or setting aside of the dismissal orders of 22/5/2017
Parties were in contempt of the order of 16/5/2016, and once a suit is dismissed under Order 17(2) the court is functus officio and the only remedy is an appeal
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Firstly, this court cannot entertain this Motion as the parties are in contempt of the court order of 16/5/2016.
Once a suit is dismissed under that rule the court is functus official and the only option is to appeal.
The application herein is without merit and is dismissed with no order as to costs.
Issues in the judgment
#Case number and full names of the parties are not stated in the judgment extract
The judgment spells 'functus officio' as 'functus official'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chairman Western Province Provincial Land Appeals Committee,Felister Andati Odera & Euphamia N. Makokha (Miscellaneous Application 242 of 2000) [2018] KEELC 4272 (KLR)", Case Analysis (2018). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4272/eng@2018-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.