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ELCOtherNot stated in the judgment (appeal from Kitale CMCC ELC 159 of 2023)· [2024] KEELC 6007 (KLR)

Kenya National Highways Authority v Socio Dairy and Farm Produce Ltd (Environment and Land Appeal E021 of 2024) [2024] KEELC 6007 (KLR)

Environment and Land Court
20 September 2024
4,294 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Appellant, against whom interlocutory judgment had been entered in Kitale CMCC ELC 159 of 2023, failed in its application before the trial court to set aside that judgment (dismissed on 26/08/2024, judgment scheduled for 23/09/2024). It then filed an appeal together with an application dated 13/09/2024 in the Environment and Land Court, Kitale, seeking arrest of the scheduled judgment, setting aside of the trial magistrate's Ruling, and leave to file a defence. Counsel justified bypassing the trial court by alleging bias. The Court, having called for submissions on its jurisdiction under Order 42 Rule 6(1), held that a party seeking stay pending appeal must first apply to the trial court, and only then may the appellate court entertain the application; that step is compulsory. Perceived bias must be raised before the very court seised of the matter, not avoided by forum shopping. The Court further held it could not arrest another court's judgment, nor set aside the trial magistrate's Ruling at the interlocutory stage without rendering the appeal otiose. The application was struck out with costs to the Respondent, but in the interest of justice the Court granted a conditional 14-day stay of delivery of the trial court's judgment to enable the Appellant to move the trial court, directed filing of the order appealed from within 14 days, and directed service of the Ruling on Hon. S.K. Mutai, SPM.

Key legal issues

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01

Whether the appellate court had jurisdiction over the stay application without prior resort to the trial court

Holding

It did not; the application was premature, incompetent and bad in law and was struck out

Reasoning

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.

p. 7
02

Whether a party who perceives bias may move to a different forum

Holding

No; allegations of bias must be placed before the very court seised of the matter at the earliest opportunity

Reasoning

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.

p. 2
03

Whether this Court could set aside the trial magistrate's Ruling at the interlocutory stage

Holding

It could not; doing so would determine the appeal at the interlocutory stage and render it otiose and res judicata

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application is struck out with costs to the Respondent
  2. 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. 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. 4.The Deputy Registrar to serve this Ruling on the trial Magistrate, Hon. S. K. Mutai, SPM, before delivery of the intended judgment

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 42 Rule 2
  • Civil Procedure Rules, 2010Order 42 Rule 4
  • Civil Procedure Rules, 2010Order 42 Rule 6(1)
  • Civil Procedure Rules, 2010Order 42 Rule 11
  • Civil Procedure Rules, 2010Order 50 Rules 6 and 7
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 51 Rule 10(2)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 169

Cases cited (6)

  • NICHOLAS KIPTOO ARAP KORIR SALAT VS. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 6 OTHERS
    [2013] EKLR
  • Vipingo Ridge Limited V Swalehe Ngonge Mpitta
    [2021] EKLR
  • Pius Mbithi & Another V Daniel Mutiria & Another
    [2017] EKLR
  • Mwangi V Mokaya
    (Environment and Land Appeal 17 of 2022) [2022] KEELC 14835 (KLR) (17 November 2022) (Ruling)
  • James Ndung'u Kero v Chief Land Registrar, Director of Survey & Attorney General
    (Environment & Land Case E046 of 2021) [2022] KEELC 1446 (KLR) (16 February 2022) (Ruling)
  • U.S. v Sisson
    399 U.S. 267, 280-81, 90 S.Ct. 2117, 2125 (1970)
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

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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 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.