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ELCDismissedEnvironment and Land Appeal 20 of 2020· [2022] KEELC 13624 (KLR)

Selebwa v Khayiya

Environment and Land Court
18 October 2022
2,770 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed eviction orders cannot be granted before a land case is fully heard, dismissing a cousin's appeal.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kakamega against a ruling of the Chief Magistrate's Court (Hon. B. Ochieng) delivered on 5th August 2020 in MCE & L Case No. 94 of 2019. The respondent had applied by Notice of Motion dated 6th November 2019 for, among other things, preservation orders, temporary injunctions, and setting aside of eviction orders made on 16th July 2019 by Hon. H. Wandera (SPM) pursuant to which he and his family were evicted from land parcel Kakamega/Shibuname/470. The trial magistrate allowed the application in terms of prayers 3, 4, 5, 6 and 7, effectively restoring the respondent to the land. The appellant, who had obtained the eviction order in a suit seeking immediate eviction, appealed on grounds including that the magistrate lacked jurisdiction to set aside a peer's orders and that the eviction order amounted to summary judgment. Ohungo J framed three issues: whether the eviction order was rightly granted, whether reverting the parties would be just, and whether the appeal was merited. The court held that an eviction order is a final order which cannot be granted at the interlocutory stage absent exceptional circumstances, and that Hon. Wandera erred in granting it. Declining to decide whether the trial magistrate had jurisdiction to set aside the orders, the court held it would be totally unjust to evict the respondent again while the main suit remained unheard. The appeal was dismissed with no order as to costs given the family relationship between the parties, who were directed to prosecute the main suit.

Key legal issues

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01

Whether an eviction order can issue at the interlocutory stage

Holding

No - it is a final order that must await full hearing of the suit; the order of 16th July 2019 was wrongly granted

Reasoning

The court held that eviction is the substantive relief sought in the plaint and cannot be granted interlocutorily absent exceptional circumstances. Hon. Wandera erred in granting eviction on 16th July 2019, so the subsequent ruling restoring the respondent was a legitimate attempt to cure that injustice.

p. 5
02

Whether the trial magistrate had jurisdiction to set aside the orders of 16th July 2019

Holding

The court declined to decide the jurisdiction question as unnecessary given the parties' restored position

Reasoning

Although the appellant argued the magistrate acted without jurisdiction in setting aside a peer's orders, the court found it unnecessary to resolve this because the constitutional edict of substantive justice and the restored status quo made reverting the parties unjust.

03

Whether the appeal should succeed on procedural grounds raised

Holding

Appeal dismissed; parties directed to prosecute the main suit

Reasoning

The court noted the appeal had stalled the substantive dispute for over two years over an interlocutory issue. The parties are cousins and the main suit remains unheard; the just course was to dismiss the appeal and direct resolute prosecution of the main suit.

p. 5

Legal principles established

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  • An eviction order is a final order which, barring exceptional circumstances, cannot be granted at an interlocutory stage and must await hearing and determination of the suit.
  • The obligation to render substantive justice applies even in undefended causes and where a party is absent despite service.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs, considering the family relationship between the parties

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(b), (d) and (e)
  • Environment and Land Court ActSection 3
  • Civil Procedure ActSections 1A and 1B; also section 3, 3A referenced in grounds of appeal
  • Magistrates' Courts Act, 2015Section 4
  • Civil Procedure RulesOrder 45

Cases cited (5)

  • Witmore Investment Limited v County Government of Kirinyaga & 3 others
    [2016] eKLR

    Substantive orders cannot be issued at the interlocutory stage

  • Nairobi West Hospital Limited v Joseph Kariha & Another
    [2018] eKLR

    Substantive orders cannot be issued at the interlocutory stage

  • Kombo v Attorney General
    [1995-98] 1EA 168

    A magistrate should not examine the judicial conduct of a magistrate of the same status

  • Paul Korir Sawe & Another v Salina C. Sawe
    [2021] eKLR

    Overriding objective; maintaining status quo pending hearing

  • Joshua Abuga & 5 others v Kelvin Kimulu & 3 others
    [2020] eKLR

    Eviction order is final and cannot be granted at interlocutory stage

On appeal from
Chief Magistrate's Court at Kakamega
MCE & L Case No. 94 of 2019
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (Environment and Land Court Act); appeal from interlocutory ruling

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, "Selebwa v Khayiya", Case Analysis (2022). Environment and Land Appeal 20 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13624/eng@2022-10-18

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