Zacharia Baraza t/a Siuma Actioneers & 3 others v Kombe & another (Environment and Land Appeal E057 & E077 of 2023 (Consolidated)) [2024] KEELC 3623 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that once a magistrate grants and executes a Rule 9 auctioneers order, the court is done and cannot issue further orders.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction to hear the appeal
The ELC has jurisdiction; the ruling appealed against was made under Order 42(1) and Order 51(1) CPR, and nothing in those provisions bars an appeal; the ELC hears appeals from subordinate courts on environment and land matters
The Respondent argued the appeal belonged elsewhere, citing Section 75 CPA and Order 43 Rule 3. The court found the impugned ruling was made on an application under Order 42(1) and Order 51(1), neither of which bars appeal, and that the ELC has jurisdiction over appeals from subordinate courts in respect of environment and land. The jurisdiction objection therefore failed.
Whether the Learned Magistrate was functus officio after issuing the orders of 18th April 2023
Yes; the Rule 9 miscellaneous application sought only police assistance for distress, that relief was granted and executed, so the lower court was functus and erred in making further orders on 12th June 2023
The proceedings were initiated under Rule 9 of the Auctioneers Rules 1997 seeking a specific relief (police assistance). Once orders of 18th April 2023 were granted and executed, nothing remained pending. The court held that the lower court had exhausted its mandate and could not issue further orders, making the 12th June 2023 ruling extraneous and erroneous.
Whether the Appellants' right to fair hearing was infringed
No; the record shows the 2nd Appellant was served, appeared, filed submissions on the preliminary objection, and was heard before the ruling
Although interim orders of 4th May 2023 were made final on 12th June 2023, the record showed service, appearance by counsel for the 2nd Appellant on 12th May 2023, directions to file submissions, and confirmation of filing on 30th May 2023 before the ruling date was reserved. There was thus no infringement of the right to be heard.
Whether the Appellants were in contempt of the orders of 29th June 2023
No; the 2nd Appellant held stay orders issued by Justice M. D. Mwangi on 3rd July 2023, and contempt requires wilful disobedience of a clear order proved to a high standard
The court restated the elements of contempt and the higher standard of proof, then found on the record that the 2nd Appellant had obtained clear stay orders from Justice M. D. Mwangi. The Respondent therefore failed to establish wilful defiance, and the contempt application dated 11th July 2023 was declined.
Legal principles established
#- Jurisdiction is everything and flows from the Constitution or legislation; without jurisdiction a court must down its tools
- A Miscellaneous application filed under Rule 9 of the Auctioneers Rules seeks a specific relief only; once that relief is granted and executed, the court becomes functus officio and cannot issue further orders
- Contempt requires wilful disobedience of a clear order, proved to a standard higher than balance of probabilities
Court orders
#- 1.The consolidated appeal filed herein is allowed
- 2.The Ruling and Orders issued on 12th June 2023 by the lower court are set aside and vacated
- 3.Each party to bear own costs of the Appeal and the proceedings before the lower court
- On appeal from
- Milimani Chief Magistrate's Court (Principal Magistrate)
- Miscellaneous Application (filed pursuant to Rule 9 of the Auctioneers Rules, 1997; related to Milimani CM Misc E551 of 2023)
- Jurisdiction invoked
- Environment and Land Court appellate jurisdiction over subordinate courts in respect of environment and land matters; application brought under Order 42(1) and Order 51(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zacharia Baraza t/a Siuma Actioneers & 3 others v Kombe & another (Environment and Land Appeal E057 & E077 of 2023 (Consolidated)) [2024] KEELC 3623 (KLR)", Case Analysis (2024). ELC Appeal No. E057 of 2023 (Consolidated with ELC Appeal No. E077 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3623/eng@2024-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.