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ELCStruck OutMiscellaneous Application; Notice of Motion dated 23.01.2023· [2025] KEELC 5811 (KLR)

Waita v National Lands Commission & another; Kenya National Highways Authority (Interested Party) (Miscellaneous Application E002 of 2023) [2025] KEELC 5811 (KLR)

Environment and Land Court
31 July 2025
YAY. M. Angima
612 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Mombasa ruled you cannot overturn another court's decree through a side application; you must join the original case or appeal.

What this practically means

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Executive summary

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The applicant, by a notice of motion dated 23.01.2023 brought under Sections 3A and 63(e) of the Civil Procedure Act and Orders 40 and 51 of the Civil Procedure Rules, sought a stay of execution of an order of the Environment and Land Court issued on 24.02.2022 in Mombasa Civil Suit No. 50 of 2021, which ordered the 1st respondent to pay the 2nd respondent Kshs.33.4 million as compensation for compulsory acquisition of Plot No. 2519.VI/MN. She also sought a fresh hearing of the primary suit and her inclusion in the compensation award, contending that her constitutional and legal rights had been infringed. No response or submissions were filed by any party despite directions. The court (Y. M. Angima, J) held that it was improper and highly irregular to challenge a decree passed by a court of competent jurisdiction by way of a separate miscellaneous application. Since the decree was passed by a court of coordinate jurisdiction, this court had no jurisdiction to overturn it; the applicant's remedy was to seek joinder in the primary suit or, if unsuccessful, to appeal to a higher court. The application was found incompetent and bad in law, and the notice of motion dated 23.01.2023 was struck out with no order as to costs. Ruling delivered virtually at Mombasa on 31 July 2025.

Key legal issues

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01

Jurisdiction to set aside a decree of a coordinate court

Holding

The court lacks jurisdiction to overturn a decree passed by a court of coordinate jurisdiction through a miscellaneous application

Reasoning

The decree in Mombasa ELC No. 50 of 2021 was passed by a court of coordinate jurisdiction. The proper course was for the applicant to seek joinder in the primary suit and, if refused, to appeal to a higher court. Initiating separate proceedings before a coordinate court is incompetent and bad in law.

p. 2
02

Proper forum for challenging a decree

Holding

The applicant should have applied to join the primary suit or appealed to a higher court

Reasoning

The applicant was aware of the primary suit in which the impugned decree was passed but did not explain why she did not challenge the decree in that suit. Her remedy lay in joinder or appeal, not a fresh miscellaneous application.

p. 2

Legal principles established

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  • A decree passed by a court of competent jurisdiction cannot be challenged by filing a separate miscellaneous application before a court of coordinate jurisdiction; the remedy is joinder in the primary suit or an appeal.

Court orders

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  1. 1.The notice of motion dated 23.01.2023 was struck out with no order as to costs

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 3A
  • Civil Procedure Act (Cap 21)Section 63(e)
  • Civil Procedure RulesOrder 40 rule 1
  • Civil Procedure RulesOrder 51 rule 1
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act (Cap 21), Order 40 rule 1 and Order 51 rule 1 of the Civil Procedure Rules

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, "Waita v National Lands Commission & another; Kenya National Highways Authority (Interested Party) (Miscellaneous Application E002 of 2023) [2025] KEELC 5811 (KLR)", Case Analysis (2025). Miscellaneous Application; Notice of Motion dated 23.01.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5811/eng@2025-07-31

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