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ELCOtherPetition dated 8th November, 2022 (Kericho)· [2024] KEELC 231 (KLR)

Kenya Union of Domestic Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) & 4 others v Management of Tea Hotel & 3 others; Onsongo t/a Hegeons Auctioneers (Interested Party) (Constitutional Petition E003 of 2022) [2024] KEELC 231 (KLR)

Environment and Land Court
25 January 2024
MOM. C. Oundo
4,107 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kericho Environment and Land Court paused its judgment in a hotel property dispute, waiting for the Court of Appeal to decide the underlying appeal first.

What this practically means

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Executive summary

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The Petitioners, the KUDHEIHA union and four purchasers of L.R No. Kericho Municipality Block 4/295, sought declarations that the Respondents' trespass, cancellation of their title, receipt of the property's proceeds, and invocation of auction procedural technicalities violated Articles 10, 40, 41, 47, 48, 50 and related provisions of the Constitution, together with general, exemplary damages, mesne profits, a permanent injunction and costs. The suit property had been auctioned on 24th January 2019 by Hegeons Auctioneers in execution of a Kshs. 51,463,694.30 decretal owed to the 1st Petitioner's members; the purchasers were declared highest bidders, transfer was effected and title issued on 19th December 2019. However, by a ruling of 18th January 2022 the Employment and Labour Relations Court (Wasilwa J) cancelled the register entries and set aside the sale and transfer. The Respondents filed no response, and only the Petitioners and the Interested Party filed submissions. Before judgment, the court noted that the Court of Appeal, in Civil Application E002 of 2022, had on 17th March 2023 granted stay of execution of the ELRC ruling and stay of further proceedings in ELRC Cause No. 10 of 2016 pending an intended appeal. Holding that a superior court had a pending determination on intertwined subject matter, the court declined to determine the petition on the merits and instead arrested delivery of judgment pending the outcome of the Court of Appeal's decision. No costs order was made; the petition was neither allowed nor dismissed. M. C. Oundo, Environment and Land Judge, delivered the judgment at Kericho on 25th January 2024 via Microsoft Teams.

Key legal issues

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01

Whether the court should determine a petition whose subject matter is the subject of a pending appeal in the Court of Appeal

Holding

The court declined to determine the petition and arrested delivery of judgment pending the Court of Appeal's decision, noting that stay of execution and of further proceedings in ELRC Cause No. 10 of 2016 had been granted on 17th March 2023

Reasoning

The court traced the history of the matter: the ELRC had cancelled the Petitioners' title entries by ruling of 18th January 2022; the Court of Appeal in Civil Application E002 of 2022 granted stay of that ruling and of further proceedings on 17th March 2023. Given the pending determination before a superior court on intertwined subject matter, the judge found it imprudent to determine the petition and instead arrested judgment pending the appeal's outcome.

p. 8
02

Whether an unopposed petition must automatically succeed

Holding

An unopposed petition must still be determined on its merit

Reasoning

The Respondents filed no response; directions were issued for disposal by written submissions, with only the Petitioners and the Interested Party complying. The court noted that the Petition was unopposed but stated it would nonetheless have to determine it on its merit rather than allow it automatically.

p. 4

Legal principles established

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  • Where a superior court has a pending determination on a subject matter intertwined with a petition before it, the subordinate court may arrest delivery of judgment pending that outcome

Court orders

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  1. 1.Arrest of delivery of the Judgment in the Petition pending the outcome of the decision by the Court of Appeal in the 1st Respondent's intended appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 21(1), 28, 29, 31, 40(1), 41, 42, 47(1) and (2), 48, 50, 60(1)(b), 69, 159(2)(b)
  • Land Registration Act, 2012Sections 2, 25, 26, 59, 87
  • Fair Administrative Actions Act, 2015Section 4(1),(2),(3)
  • Civil Procedure ActSection 27
  • Auctioneers RulesRule 15

Cases cited (5)

  • Park Towers Ltd v John Mithamo Njika & 7 others
    [2014] eKLR
  • Eric Odindo v National Bank of Kenya Limited & 2 Others
    [2008] eKLR
  • Director of Public Prosecutions vs. Michael Sistu Mwaura Kamau & 4 others
    [2020] eKLR
  • Kenya Union of Domestic Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEHIA) v Management of Tea Hotel & 4 others; Yas Angwan Holdings Limited & another (Proposed Interested Parties)
    [2022] eKLR
  • Kenya Union of Domestic Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) v Tea Hotel Limited & 3 others (Civil Application E002 of 2022)
    [2023] KECA 320 (KLR) (17 March 2023) (Ruling)
Jurisdiction invoked
Articles 2, 3, 10, 28, 29, 31, 40, 42, 48, 60(1)(b) and 69 of the Constitution of Kenya, 2010 (invoked by the Petitioners); the court exercised its discretion in the petition before it

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, "Kenya Union of Domestic Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) & 4 others v Management of Tea Hotel & 3 others; Onsongo t/a Hegeons Auctioneers (Interested Party) (Constitutional Petition E003 of 2022) [2024] KEELC 231 (KLR)", Case Analysis (2024). Petition dated 8th November, 2022 (Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/231/eng@2024-01-25

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