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ELCStruck OutELC Case No. 106 of 2015· [2024] KEELC 6491 (KLR)

Mistry Premji Ganji (Investments) Limited v Kenya National Highways Authority (Environment & Land Case 106 of 2015) [2024] KEELC 6491 (KLR)

Environment and Land Court
26 September 2024
4,432 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (Naikuni J) arose from two interlocutory applications filed after judgment had been delivered in this suit on 8th April 2021, in which the Defendant's demolition of the Plaintiff's wall, gate and alarm wiring was found unlawful and damages of Kshs. 81,574,631/- awarded. The Defendant's appeal was partially successful: on 26th April 2024 the Court of Appeal in Civil Appeal No. E051 of 2021 upheld the judgment except on the awards of special and general damages. The Plaintiff's Notice of Motion dated 30th November 2021 sought access to its sub-divisions through the Nairobi-Mombasa Highway frontage, while the Defendant's Notice of Motion dated 18th April 2024 sought post-appeal directions. Following a consensual site visit (locus in quo) at Kwa Jomvu conducted on 24th May 2024, the Court framed three issues: its jurisdiction, entitlement to reliefs, and costs. The Court held that its jurisdiction is donated by Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, but that having rendered final judgment which was appealed and determined by the Court of Appeal, it lacked statutory jurisdiction to proceed further and had become functus officio. The doctrine, as explained in Raila Odinga v IEBC and Telkom Kenya v John Ochanda, permits correction of clerical errors under the slip rule but not reopening of perfected judgments. Both applications were struck out, the Court retaining jurisdiction only over costs and matters not touching on the judgment, with each party bearing its own costs.

Key legal issues

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01

Whether the ELC retains jurisdiction over the subject matter after judgment and appeal

Holding

The Court lacks statutory jurisdiction to hear the matter any further following its own judgment of 8th April 2021 and the Court of Appeal judgment of 26th April 2024 over the same subject matter

Reasoning

The Court traced the settled principle from Owners of Motor Vessel 'Lillian S' that jurisdiction is donated by the Constitution and statute. The ELC's jurisdiction is limited by Article 162(2) and (3) of the Constitution and Section 13 of the ELC Act. Having rendered final judgment which was appealed and determined, the Court found it lacked jurisdiction to make further determinations and functus officio.

p. 9
02

Whether the Court is functus officio

Holding

Yes; a court is functus officio once it has performed all its duties and its judgment has been perfected, subject only to correcting clerical errors under the slip rule and residual matters such as costs

Reasoning

Relying on Raila Odinga v IEBC, Telkom Kenya v John Ochanda and Jersey Evening Post v Al Thani, the Court held that the doctrine gives finality to adjudication; once proceedings are concluded the court cannot review or alter its decision, and challenges must go to a higher court.

p. 9
03

Costs of the two applications

Holding

Each party to bear their own costs, as both parties merely sought directions after the judgments of the two courts

Reasoning

Costs follow the event under Section 27 of the Civil Procedure Act, but the Court exercised its discretion to relieve both parties of costs since neither succeeded or failed on merits; the applications were struck out for want of jurisdiction.

p. 11

Legal principles established

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  • Jurisdiction is everything; a court without jurisdiction must down its tools
  • A court that has delivered final judgment which has been appealed against and determined on appeal becomes functus officio and cannot reopen the matter, save for the slip rule and costs

Court orders

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  1. 1.The Notice of Motion application dated 31st November 2021 and Notice of Motion application dated 18th April, 2024 are struck out
  2. 2.This Court, being functus officio, can only deal with the issue of costs and any other issue that does not touch on the Judgment
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b), Article 162(3), Article 40(3), Article 159(2)(c)
  • Environment and Land Court Act, No. 19 of 2011Section 13(1), 13(2), 13(7), Section 20(1) and (2)
  • Civil Procedure Act, Cap. 21Section 27, Section 99
  • Civil Procedure Rules, 2010Order 18 Rule 11, Order 40 Rule 10(1)(a)
  • Evidence Act, Cap. 80Section 173
  • Land Act, No. 6 of 2012Sections 101 to 118

Cases cited (11)

  • Motor Vessel M.V. Lillians / Owners of Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • County Government of Migori v I N B Management IT Consultant Limited
    (2019) eKLR
  • Hon (Lady) Justice Kalpana H Rawal v Judicial Service Commission and others
    Supreme Court Civil Application No. 11 of 2016
  • Ocheja Immanuel Dangama v Hon. Atoi Aidoko Aliaswan and 4 others
    Supreme Court of Nigeria Case No. 11 of 2012
  • In the Matter of Interim Independent Electoral Commission
    [2011] eKLR
  • Samuel Kamau Macharia & Ano. v KCB and 2 Others
    Supreme Court Civil Application No. 2 of 2011
  • Raila Odinga & Others v IEBC & others
    [2013] eKLR
  • Jersey Evening Post Limited v Al Thani
    (2002) JLR
  • Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 996 Former Employees of Telkom Kenya Limited)
    2014 eKLR
  • Re Estate of Kinuthia Mahuti (Deceased)
    Miscellaneous Application P&A No. 158 of 2017, 2018 eKLR
  • Kenya National Highways Authority v Mistry Premji Gangji (Investment) Limited
    Civil Appeal No. E051 of 2021
On appeal from
Court of Appeal
Civil Appeal No. E051 of 2021
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, No. 19 of 2011

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, "Mistry Premji Ganji (Investments) Limited v Kenya National Highways Authority (Environment & Land Case 106 of 2015) [2024] KEELC 6491 (KLR)", Case Analysis (2024). ELC Case No. 106 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6491/eng@2024-09-26

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