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ELCOtherEnvironment and Land Appeal 3 of 2021· [2022] KEELC 2750 (KLR)

Opija v Orange (Environment and Land Appeal 3 of 2021) [2022] KEELC 2750 (KLR)

Environment and Land Court of Kenya
2 March 2022
GOG.M.A Ong'ondo
399 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay concerns an appeal brought by memorandum of appeal against proceedings in Oyugis Senior Principal Magistrate's Court Succession Cause No. 68 of 2012. In an earlier ruling of September 22, 2021, the judge had directed the Deputy Registrar to call for the original record and certified copy of proceedings and determination in the succession cause before final determination of the appeal. When the record was availed and perused, it emerged that the judge himself, while serving as a magistrate on May 30, 2013, had confirmed the grant of letters of administration issued on July 9, 2012. That grant is the subject of summons for revocation of grant dated February 26, 2020 filed in the succession cause, and is partly raised in the grounds of the appeal. The judge held that continuing to deal with the appeal would not be in the best ends of justice under Article 50(1) of the Constitution, Section 3 of the Environment and Land Court Act, 2015, and Sections 1A, 1B, 3 and 3B of the Civil Procedure Act. He therefore recused himself from the appeal, ordered its transfer together with the original succession cause record to the Migori Environment and Land Court for further orders and determination, and directed a mention there for directions. The substantive dispute over the grant was not determined by this court.

Key legal issues

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01

Whether the judge could hear the appeal given his prior involvement in the succession cause

Holding

He could not; the succession cause record showed that on May 30, 2013 he, while a magistrate, confirmed the grant of letters of administration which is the subject of the appeal and of summons for revocation of grant

Reasoning

The court perused the record of Oyugis Senior Principal Magistrate's Court Succession Cause No. 68 of 2012, which had been availed following its ruling of September 22, 2021. The record showed that the judge himself, while serving as a magistrate, had confirmed the grant now under challenge. Continuing to hear the appeal would offend Article 50(1) of the Constitution, Section 3 of the Environment and Land Court Act and the overriding objectives of the Civil Procedure Act, so recusal was necessary.

p. 1
02

Where the appeal should proceed after recusal

Holding

The appeal, together with the original succession cause record, was transferred to the Migori Environment and Land Court for further orders and determination

Reasoning

Having recused himself, the judge could not finally determine the appeal. To serve the best ends of justice and avoid delay, he ordered the entire appeal and the original lower court file transferred to the Environment and Land Court at Migori, with a mention date for directions before the judge there.

p. 2

Legal principles established

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  • A judicial officer who previously handled the underlying matter as a magistrate cannot, in the best ends of justice, continue to determine an appeal in which that matter is in issue, and should recuse himself

Court orders

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  1. 1.The judge recused himself from the appeal
  2. 2.The appeal together with the original record/file of Oyugis Senior Principal Magistrate's Court Succession Cause No. 68 of 2012 was transferred to the Migori Environment and Land Court for further orders and determination
  3. 3.Mention before the Hon. Judge at Migori Environment and Land Court on April 5, 2021 for directions

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Environment and Land Court ActSection 3
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Sections 1A, 1B, 3 and 3B
On appeal from
Oyugis Senior Principal Magistrate's Court
Succession Cause No. 68 of 2012
Jurisdiction invoked
Article 50(1) of the Constitution of Kenya, 2010; Section 3 of the Environment and Land Court Act, 2015; Sections 1A, 1B, 3 and 3B of the Civil Procedure Act (Cap 21)

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, "Opija v Orange (Environment and Land Appeal 3 of 2021) [2022] KEELC 2750 (KLR)", Case Analysis (2022). Environment and Land Appeal 3 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2750/eng@2022-03-02

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