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ELCDismissedMiscellaneous Application (ELC, Kisii)· [2021] KEELC 791 (KLR)

Sabina Moraa Swanya v Everly Kemunto Ontiri & another [2021] KEELC 791 (KLR)

Environment and Land Court
22 November 2021
JOJ.M Onyango
1,187 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 confirmed it cannot supervise magistrate courts, so litigants unhappy with a lower court's land rulings must appeal, not file miscellaneous applications.

What this practically means

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Executive summary

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The Applicant, a defendant in ongoing land proceedings before the Chief Magistrate's Court (CMC ELC No. 66 of 2020, Sabina Moraa Swanya v Augustus Oirere & Another), moved the Environment and Land Court at Kisii by miscellaneous application seeking stay and setting aside of the subordinate court proceedings, an order calling for and interrogating the trial record, a declaration that the production by PW3 and PW4 of documents not filed or served was irregular, and a declaration of mistrial with a de novo retrial before a court of equal jurisdiction. He complained that unserved Lands office documents were produced without leave despite compliance with Order 11, and that the magistrate selectively recorded cross-examination answers. The Respondent opposed, contending that no objection was raised when summons issued or when the documents were produced and cross-examined, that the trial court had already overruled the objection to expunge the documents, and that the correct remedy was an appeal; she termed the application a delay tactic and forum-shopping. The court framed the question as whether the ELC has supervisory jurisdiction over subordinate courts. Relying on Article 165(6) and (7), which vest supervisory jurisdiction in the High Court alone, and on Samuel Kamau Macharia v Kenya Commercial Bank and Patrick Musimba v National Land Commission, the court held that the ELC has no supervisory jurisdiction over subordinate courts and can only hear appeals. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the ELC can exercise supervisory jurisdiction under Article 165(6) over subordinate courts

Holding

It cannot; Article 165(6) and (7) specifically refer to the High Court and not courts of equal status with the High Court.

Reasoning

Article 165(6) and (7) confer supervisory jurisdiction expressly on the High Court only. The ELC's jurisdiction is donated by Article 162(2)(b) and section 13 of the ELC Act, which confer original and appellate jurisdiction over environment and land disputes but no supervisory power. Parliament, by the 2012 amendments, took away supervisory jurisdiction of the ELC over subordinate judicial and quasi-judicial tribunals. Accordingly, the only avenue from the subordinate court is an appeal.

p. 2
02

Whether the applicant's complaints about unserved documents and selective recording of proceedings could be entertained by way of a miscellaneous application

Holding

No; the proper remedies were objection before the trial court or an appeal against its ruling, not a miscellaneous application invoking supervisory jurisdiction.

Reasoning

The Respondent pointed out that no objection was taken when witness summons issued or when the documents were produced and cross-examination occurred; the objection came later and the trial court overruled it. Dissatisfaction with that ruling should have been pursued by appeal. The court found the application a bid to delay the hearing or engage in forum-shopping, and dismissed it for want of jurisdiction.

p. 2

Legal principles established

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  • The Environment and Land Court has no supervisory jurisdiction over subordinate courts under Article 165(6); that jurisdiction belongs to the High Court alone, and the ELC may only deal with appeals from subordinate courts
  • Jurisdiction of courts in Kenya is donated by the Constitution or statutes and courts cannot arrogate themselves jurisdiction beyond that conferred on them

Court orders

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  1. 1.The application is dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165(6) and (7)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13(1) and (2)
  • Civil Procedure RulesOrder 11

Cases cited (2)

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Patrick Musimba vs. National Land Commission & 4 Others
    (2016) eKLR
On appeal from
Chief Magistrate's Court (Environment and Land Court Case No. 66 of 2020, Sabina Moraa Swanya v Augustus Oirere & Another)
CMC ELC No. 66 of 2020
Jurisdiction invoked
Article 165(6) and (7) of the Constitution (invoked by applicant); Article 162(2)(b) and section 13 of the Environment and Land Court Act (court's own jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sabina Moraa Swanya v Everly Kemunto Ontiri & another [2021] KEELC 791 (KLR)", Case Analysis (2021). Miscellaneous Application (ELC, Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/791/eng@2021-11-22

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