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ELCPartially Allowed· [2025] KEELC 1492 (KLR)

Oduor (Trading as Beachland Developers) & 10 others v Wandoe (Purporting to Have Authority of Madin Clearing & Forwarding Ltd) & 3 others (Environment & Land Case E001 of 2025) [2025] KEELC 1492 (KLR)

Environment and Land Court
26 March 2025
3,696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Mombasa court confirmed magistrates' courts can't execute Environment and Land Court decrees unless properly transferred, voiding the orders against the stallholders.

What this practically means

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Executive summary

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The plaintiffs, trading as Beachlands Developers, moved the Environment and Land Court at Mombasa by notice of motion dated 10 January 2025 seeking stay of execution of exparte orders of 10 December 2024 issued by Hon. D. Nyambu, CM in CMC Misc. Appl. No. E010 of 2024 (Madin Clearing and Forwarding Ltd v Bamburi Supermarket Ltd) directing the OCS Nyali Police Station to assist execution of vacant possession over plot L.R. No. MN/1/12056; an order calling for the lower court file to discharge or vacate those orders; and a temporary injunction restraining the defendants from interfering with their possession of stalls on the plot. The 1st and 2nd defendants opposed, asserting the 2nd defendant is the registered proprietor whose title was affirmed in a 2016 judgment, and disputing the authority of Sammy Silas Mwaita through whom the plaintiffs claimed. The court held that subordinate courts manned by magistrates gazetted to handle environment and land matters are amenable to its supervisory jurisdiction, but the plaintiffs failed to show grave dereliction of duty or grave injustice warranting intervention, having alternative remedies in existing suits. However, on its own motion, the court declared the filing of the miscellaneous application to execute the ELC decree without transfer under section 31 of the Civil Procedure Act irregular, unlawful and an abuse of process, and the orders of 10 December 2024 null and void ab initio. The application for stay and injunction failed for want of a prima facie case under Giella v Cassman Brown. The motion was dismissed and each party ordered to bear their own costs.

Key legal issues

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01

Whether the ELC has supervisory jurisdiction over gazetted subordinate courts handling environment and land matters

Holding

Yes - such courts and tribunals are amenable to the ELC's supervisory jurisdiction

Reasoning

Counsel for the defendants argued the ELC lacks supervisory powers under Article 165(6). The court reasoned that if that were so, tribunals and magistrates gazetted to handle environment and land matters exclusively would fall outside supervision of any superior court, which the law could not have envisaged. Following Republic v Chengo, it held such magistrates' courts and tribunals are subject to the ELC's supervisory jurisdiction.

p. 5
02

Whether the plaintiffs established grounds for the supervisory jurisdiction to be invoked to vacate the order of 10 December 2024

Holding

No - no grave dereliction or grave injustice shown; efficacious remedies existed in existing suits

Reasoning

Applying the Peter Kariuki Karuguchu standard, the court noted the plaintiffs did not explain why they did not seek joinder and review in the subordinate court miscellaneous application or before the High Court which passed the decree, and instead filed a fresh suit multiplying litigation. No grave injustice would result from declining to intervene, as efficacious remedies remained available in the existing proceedings.

p. 5
03

Whether the subordinate court had jurisdiction to execute the ELC/High Court decree

Holding

No - the execution proceedings were irregular, unlawful and an abuse of process; the orders were null and void ab initio

Reasoning

Section 30 of the Civil Procedure Act allows execution by the court that passed the decree or a court to which it is sent; section 31 governs transfer. Order 22 of the Civil Procedure Rules requires execution of this court's decrees through the Deputy Registrar under Order 49 Rule 7(1)(b)(x). No transfer under section 31 was shown, so filing the miscellaneous application in the magistrates' court was irregular and an abuse of process, justifying nullification under the court's inherent powers.

p. 6
04

Whether a temporary injunction should issue restraining the defendants from interfering with the plaintiffs' possession

Holding

No - the plaintiffs failed the Giella v Cassman Brown test

Reasoning

The plaintiffs' claim derived from an agreement with Sammy Silas Mwaita, but the 1st defendant's unchallenged deposition and the CR12 show Mwaita was not a director of the 2nd defendant, and the 2nd defendant's title was affirmed in the 2016 judgment. Hence no prima facie case; damages would be readily computable from tenancy agreements; and the existence of other litigation tilts the balance of convenience against an injunction.

p. 7

Legal principles established

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  • Subordinate courts manned by magistrates gazetted to handle environment and land disputes, and tribunals handling such matters, are amenable to the ELC's supervisory jurisdiction
  • Subordinate courts have no jurisdiction to execute decrees of the ELC unless the magistrate is the Deputy Registrar or the decree has been transferred under section 31 of the Civil Procedure Act
  • The supervisory jurisdiction of the superior courts should be exercised sparingly, only in cases of grave dereliction of duty and grave abuse of law or justice

Court orders

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  1. 1.The plaintiffs' notice of motion dated 10 January 2025 is dismissed
  2. 2.On the court's own motion, the filing of CMC Misc. Appl. No. E010 of 2024, Madin Clearing and Forwarding Ltd v Bamburi Supermarket Ltd was declared irregular and unlawful, and the orders issued thereof on 10 December 2024 were declared null and void ab initio
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165(6), 162, 165(7), 159(2)(d)
  • Civil Procedure Act (Cap 21)Sections 3A, 1A, 1B, 27, 30, 31, 32
  • Civil Procedure RulesOrder 22 Rule 18, Order 49 Rule 7(1)(b)(x)
  • Environment and Land Court Act No. 19 of 2011Sections 13, 19(1)

Cases cited (4)

  • Peter Kariuki Karuguchu versus Stephen Waithaka Mwangi
    Muranga HCC Misc. Appl. No. 7 of 2023
  • Republic versus Chengo & 2 Others (Petition 5 of 2015)
    [2017] KESC 15 [KLR] (26 May 2017)
  • Republic versus Chief Magistrate's Court at Milimani Law Courts: Director of Public Prosecutions & 2 Others (Interested Parties) Exparte Pravin Galot
    (2020) eKLR
  • Giella versus Cassman Brown Company Ltd
    [1973] EA 358
Jurisdiction invoked
Environment and Land Court Act No. 19 of 2011 and Article 162(2)(b) of the Constitution; supervisory jurisdiction discussed under Article 165(6)

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, "Oduor (Trading as Beachland Developers) & 10 others v Wandoe (Purporting to Have Authority of Madin Clearing & Forwarding Ltd) & 3 others (Environment & Land Case E001 of 2025) [2025] KEELC 1492 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1492/eng@2025-03-26

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