Rotich v Bii (Environment & Land Case 8B of 2023) [2025] KEELC 3826 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled it cannot hear disputes about bank charges and auction sales, sending this 2003 land case back to the High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC can review a transfer order made by the High Court
No - courts of equal status cannot review each other's orders
The transfer order of 16th October 2023 was made by Hon. Justice (Dr) J.K Sergon of the High Court, Kericho. Relying on Muiyoro v Mwaura and Bellevue Development Company Ltd v Gikonyo, the court held that judges of concurrent jurisdiction do not possess supervisory powers over each other; the review application was therefore incompetent insofar as it sought review of the High Court order.
Whether the ELC has jurisdiction over the suit
No - the predominant issue is the legality of the charge, statutory notices and exercise of statutory power of sale, which falls within the High Court's civil jurisdiction
The court considered the pleadings in the main suit and counterclaim. The plaintiff's claim for vacant possession flows from a purchase at a chargee's auction; the defendant's counterclaim challenges the charge and statutory notices. Applying the predominant purpose test and Co-operative Bank v Njuguna, the mortgage/charge issues predominate, so vacant possession cannot be determined before legality of the charge is resolved.
Whether consent of parties can confer jurisdiction
No - jurisdiction flows from the Constitution and legislation only
Relying on Samuel Kamau Macharia v KCB, Jamal Salim v Yusuf Abdulahi Abdi and Orange Democratic Movement v Yusuf Ali Mohamed, the court held that consent or acquiescence of counsel in the transfer cannot clothe the ELC with jurisdiction it does not have, and a jurisdictional objection may be raised at any stage.
Whether proceedings already undertaken before the ELC should be expunged
Yes - they are a nullity
Having found that the court lacks jurisdiction over the suit, the court held that all proceedings undertaken in the matter before the ELC are a nullity and must be expunged from the record, consistent with the principle that a court without jurisdiction must down its tools.
Legal principles established
#- Jurisdiction is conferred by the Constitution and statute and cannot be conferred by consent or acquiescence of the parties
- Courts of equal status lack authority to review each other's decisions
- Where the predominant issue is the legality of a charge, statutory notices and exercise of statutory power of sale, jurisdiction lies with the High Court, not the ELC
Court orders
#- 1.Declaration that the Environment and Land Court lacks jurisdiction to hear and determine this suit.
- 2.Declaration that the proceedings that have taken place before the Environment and Land Court are a nullity and expunging them from the Court record.
- 3.That this file shall be placed before the Presiding Judge of the High Court sitting at Kericho for further directions.
- 4.That the cost of this application shall be in the cause.
- Jurisdiction invoked
- Articles 162(2)(b) and 165(3) of the Constitution of Kenya; Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rotich v Bii (Environment & Land Case 8B of 2023) [2025] KEELC 3826 (KLR)", Case Analysis (2025). Not stated in ruling (formerly High Court Civil Suit filed 2nd December 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3826/eng@2025-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.