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ELCPartially AllowedConstitutional Petition No. 36 of 2022 (Ruling on Notice of Motion dated 30th April 2024 and Notice of Preliminary Objection dated 10th July 2024)· [2024] KEELC 6882 (KLR)

Alba Petroleum Limited v National Land Commission & 4 others (Constitutional Petition 36 of 2022) [2024] KEELC 6882 (KLR)

Environment and Land Court of Kenya
17 October 2024
LNL. L. Naikuni
15,660 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~63 min to read original · ~4 min brief

The bottom line

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A Mombasa court declined to handle KeNHA's appeal-related application because the same issue was already before the Court of Appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni, J) determined a Notice of Motion dated 30th April 2024 by KeNHA, the 2nd Respondent, seeking extension of time to file a Notice of Appeal out of time against the Court's judgment of 26th February 2024 in the substantive petition, deeming of that Notice as duly filed, and a stay of execution of the judgment and decree. Alba Petroleum, the Petitioner, opposed the application through a replying affidavit and a four-grounds preliminary objection contending that the Court had lost jurisdiction because the Petitioner had already moved the Court of Appeal in Civil Appeal Application No. E053 of 2024 to strike out the impugned Notice of Appeal. The Petitioner also alleged the application was deliberately backdated and that the incoming advocates were never properly placed on record. The Court framed three issues: whether the objection raised pure points of law; whether the Court was functus officio; and costs. Applying Mukisa Biscuits, it held the objection raised pure points of law. Relying on Leisure Lodge, Mombasa Bricks & Tiles and Telkom Kenya, it acknowledged that a trial court retains jurisdiction over post-judgment incidental proceedings, but found that the Petitioner's invocation of the superior court on the identical question of the Notice of Appeal rendered it functus officio, obliging it to defer to the Court of Appeal. Independently, the Court found that KeNHA's new advocates were never placed on record under Order 9 Rule 9, which alone invalidated the application. The preliminary objection was upheld and the motion stayed pending the Court of Appeal outcome, with each party bearing their own costs.

Key legal issues

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01

Whether the Petitioner's preliminary objection raises pure points of law

Holding

Yes - the objection as to jurisdiction/functus officio raises pure points of law capable of finally disposing of the application

Reasoning

Applying Mukisa Biscuits and subsequent authorities, the Court found that the objection, which challenged the Court's competence to entertain the application because a similar question was pending in the Court of Appeal, depended on no ascertainment of fact and required no exercise of judicial discretion. It therefore met the classical threshold of a preliminary objection.

p. 23
02

Whether the Court is functus officio and the preliminary objection merited

Holding

Yes - the Petitioner's application in the Court of Appeal to strike out the Notice of Appeal rendered this Court functus officio on that question and the application was stayed/struck out

Reasoning

Although a court that has delivered a final judgment retains power over incidental proceedings such as stay and execution, here the Petitioner had invoked the Court of Appeal, a superior court, on the very question of whether the Notice of Appeal should stand. To avoid conflicting decisions and embarrassment to the judicial process, this Court deferred and declined to determine the application.

p. 26
03

Whether the 2nd Respondent complied with Order 9 Rule 9 in changing advocates after judgment

Holding

No - the incoming firm was never placed on record by court order or consent, invalidating the application

Reasoning

The Court observed that the 2nd Respondent's new advocates took over the matter after judgment without seeking leave under Order 9 Rule 9 of the Civil Procedure Rules. There was no proof of service on the outgoing advocates nor a consent filed between the firms. The rule is designed to protect outgoing advocates' fees at the execution stage, and non-compliance independently rendered the application invalid.

p. 27
04

Who bears the costs of the application and the preliminary objection

Holding

No party - the Court reserved its discretion and ordered each party to bear their own costs because the Court was rendered functus officio

Reasoning

The Court acknowledged that costs follow the event under Section 27(1) of the Civil Procedure Act and that the successful party is typically entitled to costs. However, invoking its discretion in the unusual circumstances where the Court found itself functus officio on the substance, it declined to award costs to either side.

Legal principles established

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  • A preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion is sought
  • A trial court does not become functus officio merely because it has delivered a final judgment; it retains jurisdiction over incidental and consequential proceedings such as stay, review and execution
  • Where a superior court (the Court of Appeal) has been properly moved on the same subject matter, the subordinate court must defer and its jurisdiction to deal with that question is ousted for the time being
  • A change of advocates after judgment cannot be effected without an order of court or a consent of the parties under Order 9 Rule 9 of the Civil Procedure Rules, and non-compliance invalidates the incoming advocate's filings

Court orders

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  1. 1.The Notice of Preliminary Objection dated 10th July 2024 was found to have merit, allowed and upheld with no orders as to costs
  2. 2.The Notice of Motion application dated 30th April 2024 was stayed pending the hearing and outcome of the Court of Appeal in Civil Appeal Application No. E053 of 2024: Alba Petroleum Limited v Kenya National Highways Authority & 4 Others
  3. 3.No orders as to costs of both the Notice of Motion application dated 30th April 2024 and the Notice of Preliminary Objection dated 10th July 2024, the Court having been rendered functus officio
On appeal from
Environment and Land Court at Mombasa
Environment and Land Court Case No. 36 of 2022
Jurisdiction invoked
Inherent jurisdiction under Sections 1A, 1B, 3A & 95 of the Civil Procedure Act, Cap. 21 and the Civil Procedure Rules, 2010 (Order 42 Rule 6, Order 50 Rule 6); the ruling itself declines to exercise jurisdiction on the deeming prayer on functus officio grounds

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alba Petroleum Limited v National Land Commission & 4 others (Constitutional Petition 36 of 2022) [2024] KEELC 6882 (KLR)", Case Analysis (2024). Constitutional Petition No. 36 of 2022 (Ruling on Notice of Motion dated 30th April 2024 and Notice of Preliminary Objection dated 10th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6882/eng@2024-10-17

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