Mwandale v Nairobi City County & 3 others (Environment & Land Petition 81 of 2018) [2024] KEELC 5770 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a constitutional petition because it tried to relitigate unappealed cases and address loan account disputes outside its jurisdiction.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over the alleged merger of the loan account of Sums Model Industries
The Environment and Land Court lacks jurisdiction over questions of accounts and loan account mergers; such matters belong to the High Court
Relying on Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the court held that ELC jurisdiction under Article 162(2)(b), Section 13 of the ELC Act and Section 150 of the Land Act does not cover accounting questions, which fall under the High Court's unlimited original civil jurisdiction under Article 165(3). The impugned merger of loan accounts is essentially an accounting question outside the ELC's circumscribed mandate.
Whether the court can review or nullify proceedings and decisions of courts of competent jurisdiction via constitutional petition
No. The proper avenues were review under Section 80 of the Civil Procedure Act and Order 45, or appeal; a petition cannot substitute for an appeal
The impugned proceedings in Misc. App No 138 of 2013, RMCC 20 of 2013 and RMCC 9 of 2013 were before courts of competent jurisdiction and their decisions were never appealed or reviewed. The court held that such decisions cannot be the subject of a constitutional petition, and the amended Petition is untenable and cannot take the place of an appeal.
Whether the court can reconsider or set aside orders in ELC No. 671 of 2017, a matter of coordinate jurisdiction
No. Judges of concurrent jurisdiction have no supervisory powers over each other
Following Bellevue Development Company Ltd v Gikonyo, the court held that in a hierarchical court system no judge may superintend over fellow judges of equal status; only the High Court has supervisory jurisdiction over subordinate courts under Article 165(6). Such an endeavour would be a plain nullity and an affront to the rule of law.
Legal principles established
#- Where a court is divested of jurisdiction it must down its tools at the onset; proceedings undertaken without jurisdiction are a nullity ab initio
- Questions of accounts, including disputes over merger of loan accounts, fall within the jurisdiction of the High Court and not the Environment and Land Court
- A constitutional petition cannot be used as a disguised appeal to overturn decisions of courts of competent jurisdiction which have neither been appealed nor reviewed
- A judge of concurrent jurisdiction cannot supervise, review or set aside the orders of another judge of coordinate jurisdiction
Court orders
#- 1.The Amended Petition dated the 26th May 2023 is struck out
- 2.Costs of the proceedings and those flowing from the amended Petition awarded to the 2nd and 3rd Respondents
- 3.Such costs to be agreed between the parties and in default to be taxed by the deputy registrar of the court
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and the Environment and Land Court Act (jurisdiction questioned under preliminary objection)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwandale v Nairobi City County & 3 others (Environment & Land Petition 81 of 2018) [2024] KEELC 5770 (KLR)", Case Analysis (2024). Petition dated 2nd November 2018 (Amended Petition dated 26th May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5770/eng@2024-08-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.