Odera (Suing in her Capacity as the Legal Representative and Administrator of the Estate of Gladys Betty Odera - Deceased) v Balozi Housing Co-operative Ltd (Civil Appeal E727 of 2023) [2024] KECA 1177 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that old land cases filed before the Environment and Land Court existed must be transferred there, no matter how much time has passed.
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 learned Judge misapprehended the import, tenor and purport of the ELC Practice Directions dated 25th July 2014
- 2.Whether the learned Judge erred in law and in fact by finding that the High Court lacked jurisdiction to transfer HCCC No 1075 of 2006 to the Environment and Land Court even though it had been lodged in the correct court
Key legal issues
#Whether the High Court had jurisdiction to transfer a pre-2011 land suit to the Environment and Land Court under the 2014 ELC Practice Directions
The appeal was allowed; the High Court's refusal to transfer was set aside and the suit was transferred to the ELC. A suit filed before the ELC existed could not be deemed incompetently filed, and Practice Direction No 5 applied.
Both parties agreed the dispute concerned title to land, which the High Court could not determine. The suit was filed in 2006, before the ELC was created in 2011, so there was no other competent forum. Practice Directions 4 and 5 contemplate transfer of cases where hearing had not commenced. The Judge erred in treating the suit as filed in a court without jurisdiction and in reading a temporal limit into the transitional provisions, which none contains.
Jurisdiction of specialised courts following Karisa Chengo
Judges of the High Court lack jurisdiction to hear and determine environment and land disputes reserved to the specialised courts, and ought to decline jurisdiction and allow transfer.
Relying on Karisa Chengo, judges of the specialised courts possess additional qualifications and specialisation that High Court judges do not necessarily have. Once it was apparent the dispute fell within Article 162(2)(b), the learned Judge ought to have downed his tools and granted the transfer order rather than retain a suit he could not determine.
Whether the transitional provisions and Practice Directions expired after a fixed period
The transitional provisions contain no indication that they applied only within a fixed period; Christopher Wafula Mutoro did not oust jurisdiction or set a time limit.
A holistic reading of the transition provisions shows they were not time-bound. Mutoro's holding concerned automatic conferment of jurisdiction on the ELC once operational; the transfer of suits was merely an administrative process, not a limitation on the Directions' applicability.
Whether the Co-operative Tribunal's jurisdiction could be raised by the respondent on appeal
The issue could not be entertained absent a cross-appeal and having never been canvassed below.
The learned Judge did not address the Co-operative Tribunal's jurisdiction; the respondent raised it in a replying affidavit and on appeal. The settled principle restricts appellate courts to issues canvassed before and decided by the trial court, failing which the appellate court becomes a trial court in disguise.
Legal principles established
#- A suit filed in the High Court before the establishment of the Environment and Land Court, in which hearing had not commenced, falls within Practice Direction No 5 and is to be transferred to the Environment and Land Court; such a suit is not to be treated as having been filed in a court without jurisdiction, and the transitional Practice Directions are not confined to a fixed period of time.
- The Environment and Land Court Practice Directions issued under sections 24 and 30 of the Environment and Land Court Act contain no time limit on their applicability; the transitional provisions were not intended to lapse merely with the passage of years.
- Matters not canvassed by the parties and not decided by the trial court cannot be raised for the first time on appeal without a cross-appeal.
Court orders
#- 1.The ruling and order of Aleem Visram, J. dated and delivered on 24th May 2023 is set aside
- 2.The suit filed before the High Court, being HCCC No 1075 of 2006, be and is hereby transferred to the Environment and Land Court for hearing and determination
- 3.The appellant is awarded the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Nairobi Civil Division
- HCCC No 1075 of 2006 (ruling on Notice of Motion dated 7th March 2023)
- Jurisdiction invoked
- Section 3 of the Court of Appeal Act / Article 164 of the Constitution (first appeal to the Court of Appeal); underlying dispute engages Article 162(2)(b) of the Constitution and the Environment and Land Court Act
Relief refused
#Respondent's proposition that the dispute belongs to the Co-operative Tribunal
No cross-appeal was raised and the issue was not canvassed before the trial court; matters not canvassed by parties and not pronounced on by the trial court cannot be the subject of appeal
Costs
The appellant is awarded the costs of this appeal. (The order below - dismissal of the application with costs - was set aside.)
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.
In the premise, the ruling and order of Aleem Visram, J. dated and delivered on 24th May 2023 is hereby set aside. We order that the suit filed before the High Court, being HCCC No 1075 of 2006 be and hereby transferred to the Environment and Land Court for hearing and determination. The appellant is awarded the costs of this appeal.
Our finding is that the learned Judge misapplied the principle of transferring the suit when it came to this instance since the suit was not filed in a court of incompetent jurisdiction in the first place.
A holistic reading of the transition provisions leaves no doubt that there is no indication that they were applicable within a period of time.
The transfer of suits to their proper jurisdiction in the specialised courts was nothing but just an administrative process.
matters not canvassed by parties and which the trial court did not get a chance to pronounce itself on, cannot be subject of appeal
Issues in the judgment
#The judgment renders the authority's name inconsistently, referring to it as 'Christopher Wafula Mutoro' when discussing submissions but as 'Christopher Wafula Muturi' when considering its facts.
The coram lists 'F. W. NGENYE - MACHARIA' with spacing/formatting variations that may affect name matching.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odera (Suing in her Capacity as the Legal Representative and Administrator of the Estate of Gladys Betty Odera - Deceased) v Balozi Housing Co-operative Ltd (Civil Appeal E727 of 2023) [2024] KECA 1177 (KLR)", Case Analysis (2024). Appeal against the ruling in HCCC No 1075 of 2006; Memorandum of Appeal dated 14th August 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1177/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.