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ELCDismissedNot stated in the judgment (ruling on the 3rd Defendant's application dated 5/6/25)

Karume v Chief Land Registrar & 2 others; Baraza t/a Siuma Auctioneers (Proposed Interested Party) (Environment and Land Case 816 of 2012) [2025] KEELC 5572 (KLR)

Environment and Land Court
24 July 2025
3,559 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed an attempt to block an eviction, ruling it had no power to stay a magistrate's orders without an appeal.

What this practically means

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Executive summary

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The 3rd Defendant, Insurance Training & Education Trust, moved the Court by application dated 5/6/25 seeking joinder of Zachary Baraza t/a Siuma Auctioneers as an interested party, stay or suspension of orders issued on 13/11/24 in Miscellaneous Application No. E005 of 2024 in the Chief Magistrate's Court at Milimani (directing the OCS Akila Police Station to provide security during eviction), and injunctions restraining eviction from LR No. 209/10210 pending determination of its application dated 16/10/24. The applicant relied on the Court of Appeal's judgment of 14/6/24 (which reversed the ELC and declared the plaintiff, Rajab Ahmed Karume, sole lawful owner) and argued that execution was premature since costs had not been taxed, that statutory eviction notice requirements had not been met, and that applications were pending before the ELC and Court of Appeal. The plaintiff filed a preliminary objection contending the ELC lacked jurisdiction to stay subordinate court orders absent an appeal or intended appeal, and could not sit on appeal over the Court of Appeal. The court upheld the objection, holding that its jurisdiction over magistrates' courts is appellate only under Section 71A of the Civil Procedure Act and Order 42 Rule 6; no appeal existed from the orders of 13/11/24, and Section 34 could not confer jurisdiction. The court further held it is bound by the Court of Appeal and cannot interfere with its judgment, noting the Court of Appeal's ruling of 20/6/25 dismissing certification for a Supreme Court appeal. The application was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Preliminary Objection is merited
  2. 2.If in the negative, whether the application has merit
  3. 3.Who meets the cost of the application

Key legal issues

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01

Whether the ELC has jurisdiction to stay orders of the Chief Magistrate's Court issued on 13/11/24

Holding

The preliminary objection on jurisdiction was upheld; without an appeal or intended appeal from the subordinate court's orders, the ELC cannot assume jurisdiction under Order 42 Rule 6 or Section 34 of the Civil Procedure Act.

Reasoning

The court held its jurisdiction over the magistrates' court is appellate only, invoked via an appeal or intended appeal under Section 71A of the Civil Procedure Act. No appeal was filed against the orders of 13/11/24. Section 34 could not assist because questions on execution must be determined by the executing court. Stay could not issue in the absence of an appeal or intended appeal.

p. 7
02

Whether the ELC can make orders interfering with the judgment of the Court of Appeal

Holding

The court is bound by the Court of Appeal's judgment declaring the plaintiff the lawful owner and cannot make pronouncements whose effect is to interfere with it.

Reasoning

The court took judicial notice of the Court of Appeal judgment of 14/6/24 in favour of the plaintiff and relied on the Supreme Court's decision in Kenya Hotel Properties v Attorney General that superior courts cannot reopen or review decisions of peers or higher courts. Any order restraining eviction would have that effect.

p. 7
03

Whether the preliminary objection was a true point of law

Holding

Yes; if upheld it would determine the application in its entirety.

Reasoning

The court found that the objection went purely to jurisdiction, a question of law which, if answered affirmatively, disposed of the application finally, rendering it unnecessary to consider the merits of the application dated 5/6/25.

p. 6

Legal principles established

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  • The ELC's jurisdiction to stay a subordinate court's order arises only on appeal or intended appeal under Section 71A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules; absent an appeal there is no jurisdiction.
  • A superior court cannot grant orders to reopen or review decisions of courts of equal or higher jurisdiction.

Court orders

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  1. 1.The preliminary objection dated 12/6/25 is upheld
  2. 2.The application dated 5/6/25 is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 159(2)(a) & (d) of the Constitution; Sections 1A, 1B & 3A of the Civil Procedure Act; Rule 51 of the Civil Procedure Rules, 2010 (application); Court's appellate jurisdiction under Section 71A of the Civil Procedure Act considered

Relief refused

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Joinder of Zachary Baraza T/A Siuma Auctioneers as interested party and stay/suspension of the orders of 13/11/24 issued in Miscellaneous Application No. E005 of 2024

The ELC has no jurisdiction to stay the subordinate court's orders in the absence of an appeal or intended appeal, and cannot make orders interfering with the Court of Appeal judgment

p. 7

Stay pending determination of the application dated 16/10/24

The Court of Appeal application for certification and leave to appeal to the Supreme Court had been determined on 20/6/25, mooting the basis for the stay

p. 7

Costs

The application dated 5/6/25 dismissed with costs (costs to the plaintiff)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place.
p. 5Jurisdiction of courts (Phoenix of EA Assurance, quoted)
In this case there is no appeal and or intended appeal from the decision of the Chief Magistrate issued on 13/11/24 and therefore the Court finds that granting of orders of stay of the said orders do not lie in the circumstances of this case.
p. 7No stay absent appeal or intended appeal
This Court is bound by the decisions of the Court of Appeal and cannot make any judicial pronouncement whose effect is to interfere with its decision.
p. 7Binding effect of Court of Appeal decisions
In the end, I find that the preliminary objection is upheld and consequently the application dated 5/6/25 be and is hereby dismissed with costs.
p. 7Final orders/disposition

Issues in the judgment

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minor

The judgment inconsistently cites Section 152G as belonging to both the Land Act and the Land Registration Act

minor

The applicant's court of appeal number is inconsistently recorded as E519 of 2020 and E390 of 2020

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, "Karume v Chief Land Registrar & 2 others; Baraza t/a Siuma Auctioneers (Proposed Interested Party) (Environment and Land Case 816 of 2012) [2025] KEELC 5572 (KLR)", Case Analysis (2025). Not stated in the judgment (ruling on the 3rd Defendant's application dated 5/6/25). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5572/eng@2025-07-24

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