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ELCDismissedNot stated in judgment· [2025] KEELC 4751 (KLR)

Clerknewell Investments Limited v Best Adventures Safari Limited (Environment and Land Appeal E012 of 2024) [2025] KEELC 4751 (KLR)

Environment and Land Court
26 June 2025
LGL. GACHERU
3,300 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that a High Court-ordered file transfer is final, and an appeal filed in the wrong registry within 30 days remains valid.

What this practically means

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Executive summary

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The Appellant appealed against a ruling of the trial court dated 24th June 2024, which dismissed his application for review of a judgment of 28th July 2021 insofar as it directed that interest run from the date of judgment rather than from the date of filing suit. The 1st Respondent raised a preliminary objection dated 20th February 2025, contending that the appeal, initially and inadvertently filed at the High Court Registry on 9th July 2024 before being transferred to the Environment and Land Court on the High Court's own motion on 17th October 2024, offended section 16A of the Environment and Land Court Act, was a nullity incapable of being cured by transfer, and should be struck out. The Appellant opposed, arguing the appeal was filed within the 30-day statutory period, was headed for the ELC, the transfer was ordered by a court of equal status whose decision was unappealed, and the objection was res judicata. The court framed two issues: whether the objection was res judicata and whether it was merited. Applying section 7 of the Civil Procedure Act and the Supreme Court's decision in IEBC v Maina Kiai, the court held the transfer had been determined by a competent court of equal status under Article 162(2), and re-litigating it was barred; and that the appeal, filed on 9th July 2024, was within the 30 days allowed by section 16A. The preliminary objection was dismissed entirely with costs to the Appellant, and the appeal was directed to proceed to hearing on merit.

Key legal issues

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01

Whether the preliminary objection on the transfer of the appeal is res judicata

Holding

Yes; the High Court, a court of equal and competent jurisdiction, had already determined the transfer, and re-litigating it is barred by section 7 of the Civil Procedure Act.

Reasoning

The appeal was headed 'In the Environment and Land Court of Kenya at Narok' and was intended for the ELC Registry, but was inadvertently filed in the High Court. On 17th October 2024 the High Court, of its own motion, directed transfer to the ELC. Under Article 162(2) the High Court and ELC are of equal status, so the 1st Respondent should have appealed or sought review of that ruling. Raising the transfer issue afresh contravenes section 7 of the Civil Procedure Act, which bars re-litigation of issues heard and finally determined by a competent court.

p. 5
02

Whether the appeal offends section 16A of the Environment and Land Court Act as having been filed out of time

Holding

No; the memorandum of appeal dated 5th July 2024 and filed 9th July 2024 was within the 30 days prescribed by section 16A from the ruling of 24th June 2024.

Reasoning

The impugned ruling was delivered on 24th June 2024. The Memo of Appeal was dated 5th July 2024 and filed on 9th July 2024, albeit at the High Court Registry rather than the ELC Registry. Because filing occurred within the statutory 30-day window in section 16A of the ELC Act, the objection that the appeal was filed out of time and therefore fatally defective could not stand.

p. 6

Legal principles established

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  • A preliminary objection challenging a transfer ordered by a court of competent jurisdiction of equal status is res judicata and cannot be entertained.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 20th February 2025 is dismissed entirely with costs to the Appellant
  2. 2.The instant Appeal to be heard and determined on merit

Authorities

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Legislation

  • Environment and Land Court Act (Cap. 8D)section 16A
  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 18
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 162(2)

Cases cited (11)

  • Phoenix of E.A Assurance Co. Ltd vs S.M Thiga t/a Newspaper Services
    Civil Appeal 244 of 2010 [2019] KECA 767 (KLR)
  • Equity Bank Ltd vs Bruce Mutie Mutuku t/a Diani Tours Travel
    (2016) eKLR
  • Boniface Waweru Mbiyu vs Mary Njeri & Another
    (2005) eKLR
  • Zachary Okoth Obado vs Edward Akongo Oyugi & 2 others
    (2014) eKLR
  • Equitable Party & 2 others vs Independent Electoral and Boundary Commission
    (2022) eKLR
  • CFC Stanbic Ltd vs John Maina Githaiga & Another
    (2013) eKLR
  • Gladys Nduku Nthuku vs Letshego Kenya ltd; Mueni Charles Maingi (Intended Plaintiff)
    [2022] eKLR
  • IEBC Vs Maina Kiai & 5 others
    (2017) eKLR
  • Kagenyi v. Musiramo
    null
  • Lee G Muthoga V Habib Zurich Finance (K) Ltd & Another
    Civil Application No. Nai 236 of 2009
  • Raila Odinga and 5 Others v. IEBC and 3 Others; Petition No. 5 of 2013
    [2013] e KLR
On appeal from
Not named in judgment (trial/subordinate court)
null
Jurisdiction invoked
Article 162(2) of the Constitution; Environment and Land Court Act (including section 16A)

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, "Clerknewell Investments Limited v Best Adventures Safari Limited (Environment and Land Appeal E012 of 2024) [2025] KEELC 4751 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4751/eng@2025-06-26

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