Kenya National Highways Authority v Socio Dairy and Farm Produce Ltd (Environment and Land Appeal E021 of 2024) [2024] KEELC 6007 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a stay application because the appellant skipped the compulsory first step of applying to the trial court.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellate court had jurisdiction over the stay application without prior resort to the trial court
It did not; the application was premature, incompetent and bad in law and was struck out
Order 42 Rule 6(1) requires an applicant for stay pending appeal to apply first to the court appealed from; the appellate court may then consider the application whether the trial court granted or refused it. Counsel for the Appellant admitted the infraction. Without exhausting that step, the superior court lacks jurisdiction. The application was therefore struck out with costs.
Whether a party who perceives bias may move to a different forum
No; allegations of bias must be placed before the very court seised of the matter at the earliest opportunity
A court with jurisdiction has a duty to sit, and parties have a duty to submit to that jurisdiction. Perceived bias, conflict or incapacity must be raised before the same court as soon as it becomes apparent, so the court can determine it before proceeding. Walking away to another forum while the matter is pending constitutes forum shopping that undermines the rule of law.
Whether this Court could set aside the trial magistrate's Ruling at the interlocutory stage
It could not; doing so would determine the appeal at the interlocutory stage and render it otiose and res judicata
The interlocutory application is meant to pave the way for the hearing of the appeal. If the Court allowed the prayer, nothing would remain of the appeal; if it dismissed it, the appeal would be determined and res judicata. Either outcome would be an absurdity. This reflected poor drafting of pleadings by counsel.
Legal principles established
#- A party aggrieved by an order of a subordinate court must first apply to the trial court for stay under Order 42 Rule 6(1) before moving the appellate court; the step is compulsory, not optional
- The appellate court acquires jurisdiction over a stay application only upon fulfilment of the prior step in the trial court
- A party who believes the trial court is biased must raise it before that court, not abandon it and rush to another forum
Court orders
#- 1.The application is struck out with costs to the Respondent
- 2.A conditional order of stay of delivery of the judgment of the trial court scheduled for 23/09/2024 for fourteen (14) days only, to allow the Appellant to move the trial court for appropriate orders; failing which the orders lapse automatically and the trial court is at liberty to proceed
- 3.The Appellant to file the order appealed from within 14 days and move the Court to consider the Appeal in terms of Order 42 Rules 2 and 11
- 4.The Deputy Registrar to serve this Ruling on the trial Magistrate, Hon. S. K. Mutai, SPM, before delivery of the intended judgment
- On appeal from
- Chief Magistrate's Court, Kitale (Kitale CMCC ELC 159 of 2023)
- Kitale CMCC ELC 159 of 2023
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010 (appeal from a subordinate court under Article 169 of the Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Highways Authority v Socio Dairy and Farm Produce Ltd (Environment and Land Appeal E021 of 2024) [2024] KEELC 6007 (KLR)", Case Analysis (2024). Not stated in the judgment (appeal from Kitale CMCC ELC 159 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6007/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.