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ELCPartially AllowedMiscellaneous Application (Notice of Motion dated March 25, 2024)· [2024] KEELC 5794 (KLR)

Kenya Railways Corporation v Brecade Limited & another (Environment & Land Miscellaneous Case E061 of 2024) [2024] KEELC 5794 (KLR)

Environment and Land Court
31 July 2024
OAO. A. Angote
2,538 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed it supervises lower courts in land disputes, lifted arrest warrants, but left the review itself to the magistrate.

What this practically means

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Executive summary

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Brecade Limited, the applicant before the Environment and Land Court, moved the court by Notice of Motion dated 25th March 2024 seeking supervisory intervention in Nairobi Chief Magistrate's Court ELC Case E373 of 2022 (Brecade Limited & Another v Kenya Railways Corporation). The magistrate had found the applicant's Managing Director, Philip Mainga, guilty of contempt of ex-parte injunction orders issued on 31st October 2022 and issued a notice to show cause and warrants of arrest. The applicant deponed that the respondents had already been evicted before the injunction issued, that it had filed two applications for review (21st and 22nd February 2024) which the magistrate declined to hear or set down for directions, and that this conduct was akin to unfair administrative action contrary to Articles 47, 48 and 50 of the Constitution. The respondents opposed, contending the Managing Director repeatedly declined to appear and purge the contempt, that the applicant had not appealed, and that the ELC was being asked to micro-manage the lower court. Justice O. A. Angote held that the ELC, being of equal status with the High Court, enjoys supervisory jurisdiction under Article 165(6) and (7) over subordinate courts in land and environment disputes, following its earlier decision in Lariak Properties Limited v Metro Pharmaceuticals. However, the power of review in civil matters is reserved to the trial court, so the ELC could not itself review the ruling of 17th March 2023. The court found that the trial court ought to have heard the pending review application before issuing warrants of arrest. The motion was allowed only to the extent that the two pending review applications are to be heard on a priority basis, and warrants of arrest against Mr Mainga were lifted on an interim basis pending their determination. No costs order was made.

Key legal issues

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01

Supervisory jurisdiction of the ELC over subordinate courts in land and environment disputes

Holding

The ELC, having equal status with the High Court under Article 165, possesses supervisory jurisdiction over subordinate courts handling land and environment disputes and may call for the record of any such proceedings and make appropriate orders to ensure the fair administration of justice.

Reasoning

The court applied Article 165(6) and (7) and its earlier holding in Lariak Properties Limited v Metro Pharmaceuticals, reasoning that since the High Court cannot superintend subordinate courts gazetted under the Environment and Land Court Act, and the ELC has the status of the High Court, supervisory powers apply mutatis mutandis to the ELC, limited to land and environment disputes.

p. 5
02

Whether the subordinate court breached the Applicant's right to a fair hearing by issuing warrants of arrest without determining pending review applications

Holding

Yes. The trial court ought to have heard and determined the pending application for review before proceeding to issue warrants of arrest.

Reasoning

The court found it undisputed that two review applications dated 21st and 22nd February 2024 were filed but were never argued nor set down for directions, yet the magistrate proceeded to issue warrants of arrest. Guided by Article 50 of the Constitution and section 80 of the Civil Procedure Act with Order 45(1) of the Civil Procedure Rules, the court held this was procedurally improper and directed the review applications be heard on priority basis.

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03

Whether the ELC can itself review the magistrate's ruling of 17th March 2023

Holding

No. Review is a trial court remedy; the ELC cannot review the subordinate court's ruling.

Reasoning

The court held that review of a civil ruling is reserved for the court that made it. The Applicant had not cited any provision of the Civil Procedure Act or Rules permitting the ELC to review a lower court's ruling. The proper avenue was for the trial court to determine the pending review applications, which the court directed.

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Legal principles established

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  • The Environment and Land Court, being of equal status with the High Court, is vested with supervisory jurisdiction over subordinate courts and any person, body or authority exercising judicial or quasi-judicial functions in land and environmental disputes notwithstanding that the Environment and Land Court Act does not expressly state so.
  • The power to review a ruling in a civil matter is reserved for the trial court, not an appellate or supervisory court of equal status.
  • A trial court ought to hear and determine a pending application for review before proceeding to issue warrants of arrest, in line with the right to a fair hearing and the review jurisdiction under section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules.

Court orders

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  1. 1.The two pending applications for review in Nairobi MCELC E373 of 2022 Brecade Limited & Another v Kenya Railways Corporation dated 21st February, 2024 and 22nd February, 2024 to be heard on priority basis
  2. 2.Pending the hearing and determination of the two pending applications for review by the subordinate court, interim orders lifting the warrants of arrest against the Applicant's Managing Director, Mr. Philip Mainga is hereby granted

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 165(6) and (7)
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45(1)
  • Environment and Land Court Actgenerally (status of the court)

Cases cited (1)

  • Lariak Properties Limited v Metro Pharmaceuticals Limited
    (Environment & Land Miscellaneous Case E19 of 2022) [2022] KEELC 15000 (KLR) (25 November 2022) (Ruling)
Jurisdiction invoked
Article 165(6) and (7) of the Constitution (supervisory jurisdiction of the ELC, being of equal status with the High Court, over subordinate courts in land and environment disputes)

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 Railways Corporation v Brecade Limited & another (Environment & Land Miscellaneous Case E061 of 2024) [2024] KEELC 5794 (KLR)", Case Analysis (2024). Miscellaneous Application (Notice of Motion dated March 25, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5794/eng@2024-07-31

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