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ELCDismissedNot stated in judgment (Notice of Motion dated 28th October 2019 as amended on 27th November 2019)· [2020] KEELC 3489 (KLR)

Leonard Wafula Walubengo & 29 others v Maurice Nabiliki Watta & 5 others [2020] KEELC 3489 (KLR)

Environment and Land Court
20 February 2020
1,098 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to stop evictions ordered by a Bungoma magistrate's court, ruling it lacked power to supervise or review concluded cases.

What this practically means

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Executive summary

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The applicants, persons claiming to reside on and hold titles to portions of land parcels Bokoli/Misikhu/1102 and 1106, moved the Environment and Land Court at Bungoma by amended Notice of Motion dated 28th October 2019 seeking stay of execution of eviction orders issued in Bungoma CMCC Land & Environment Case No. 61 of 2018, a call-up of that file under the court's supervisory jurisdiction to determine whether the subordinate court had pecuniary jurisdiction and whether 41 residents were deprived of a hearing, and transfer of the suit to the ELC on the ground that the subject matter was valued at Kshs. 20 million. The respondents did not respond. Justice Boaz N. Olao declined all prayers. He held that the ELC's supervisory jurisdiction under Section 13(5) and (6) of the ELC Act had been removed by amendment and that Article 165(6) and (7) of the Constitution vests such power in the High Court only; further, the subordinate court matter had been heard, finalized and a decree issued, so the file could not be called up absent appellate jurisdiction. The stay prayer failed because Order 42 Rule 6 CPR applies only pending appeal, and a stay application was already sub judice before the trial court. Transfer was refused because a concluded suit cannot be transferred. The court suggested review before the trial court under Order 45 CPR, which covers 'any person considering himself aggrieved'. The application was dismissed with no orders as to costs.

Key legal issues

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01

Supervisory jurisdiction of the ELC over subordinate courts

Holding

Declined; jurisdiction removed by amendment and Article 165(6) and (7) vests such power in the High Court only

Reasoning

The court noted that Section 13(5) and (6) of the ELC Act, which previously conferred supervisory jurisdiction, was deleted by amendment. Article 165(6) and (7) of the Constitution refers specifically to the High Court. Further, the subordinate court matter had been heard, finalized and a decree issued, so calling up the file would be improper absent appellate jurisdiction.

p. 3
02

Stay of execution pending appeal

Holding

Not available as no appeal was pending before the ELC

Reasoning

Order 42 Rule 6 CPR only empowers the court to stay execution pending appeal. There was no appeal before the ELC, and the applicants' stay application was already pending before the trial court, making the issue sub judice.

p. 3
03

Transfer of a concluded suit

Holding

Refused; a finalized suit cannot be transferred

Reasoning

The subordinate court suit had proceeded to judgment and decree. The court held that transfer for want of pecuniary jurisdiction is only available for pending suits and the prayer was not available to the applicants.

p. 3
04

Remedy for non-parties aggrieved by a decree

Holding

Review by the trial court under Order 45 CPR

Reasoning

Counsel argued that non-parties cannot appeal. The court observed that Order 45 of the Civil Procedure Rules, which refers to 'Any person considering himself aggrieved', offers a window to such persons.

p. 3

Legal principles established

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  • The Environment and Land Court no longer has supervisory jurisdiction over subordinate courts following amendments to Section 13 of the ELC Act
  • A concluded suit cannot be transferred to the ELC for want of pecuniary jurisdiction
  • Stay of execution under Order 42 Rule 6 CPR is only available on appeal; non-parties aggrieved by a decree may pursue review under Order 45

Court orders

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  1. 1.The amended Notice of Motion dated 28th October 2019 dismissed with no orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 165(6) and (7)
  • Environment and Land Court ActSection 13(5) and (6)
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 45
Jurisdiction invoked
Supervisory and transfer jurisdiction of the Environment and Land Court; Article 165(6) and (7) of the Constitution considered and found inapplicable

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Leonard Wafula Walubengo & 29 others v Maurice Nabiliki Watta & 5 others [2020] KEELC 3489 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 28th October 2019 as amended on 27th November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3489/eng@2020-02-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.