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ELCDismissedNotice of Motion dated 16th July, 2025 in Eldoret ELC (suit on adverse possession)· [2025] KEELC 8515 (KLR)

Tarus v Hustler Transport Limited (Enviromental and Land Originating Summons E017 of 2019) [2025] KEELC 8515 (KLR)

Environment and Land Court
4 December 2025
CYC. K. Yano
3,603 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 cannot stop criminal charges over land — only the High Court can — and the landowner's application was dismissed with costs.

What this practically means

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Executive summary

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The applicant, Gabriel Kipchirchir Tarus, moved the Environment and Land Court at Eldoret by notice of motion dated 16th July 2025 seeking a stay of proceedings in Eldoret Chief Magistrates Court Criminal Case No. E453 of 2025 and an injunction restraining the respondent from evicting him from land parcels LR. Pioneer Ngeria Block 1 (EATEC) 7082, 7083, 9722, 9723, 9724 and 9725, pending determination of his suit claiming title by adverse possession. He argued that the real dispute is proprietary, that the subordinate court cannot determine adverse possession, and that the criminal prosecution is an abuse of process. The respondent opposed, contending that the ELC lacks jurisdiction to stay criminal proceedings, that criminal and civil proceedings may run concurrently, and that the applicant had no prima facie case, had delayed, and was a trespasser. The court framed two issues. First, it held that under Article 162(2)(b) of the Constitution and section 13 of the ELC Act, staying criminal proceedings is not within the ELC's powers; that role belongs to the High Court under Article 165, following Benard Nyamanya Mogaka and the Supreme Court's decision in Karisa Chengo. Further, section 193A of the Criminal Procedure Code permits concurrent proceedings. Secondly, applying Giella v Cassman Brown, the court found no prima facie case: the applicant had not sought injunction in the earlier 2015 eviction suit (now CMCC Land Case No. 118B of 2018, transferred to be heard concurrently), the delay cast doubt on his intentions, and he appeared to have abandoned the injunction prayer by not submitting on it. The notice of motion was dismissed with costs to the respondent.

Key legal issues

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01

Jurisdiction of the ELC to stay criminal proceedings

Holding

The ELC lacks jurisdiction to stay criminal proceedings before the magistrates' court.

Reasoning

Article 162(2)(b) establishes the ELC as a specialized court for environment and land disputes, and section 13 of the ELC Act defines its jurisdiction, which does not include staying criminal proceedings. Supervisory jurisdiction over subordinate courts in criminal matters rests with the High Court under Article 165. The court applied Benard Nyamanya Mogaka and Republic v Karisa Chengo, holding that the proper forum is the High Court.

p. 4
02

Concurrent criminal and civil proceedings

Holding

The pendency of civil proceedings over the suit land does not bar criminal proceedings.

Reasoning

Relying on section 193A of the Criminal Procedure Code as quoted in Republic v Director of Public Prosecutions; CMM, the court held that concurrent running of criminal and civil proceedings over the same facts or property is lawful, and the applicant demonstrated no exceptional circumstances justifying a stay.

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Temporary injunction based on adverse possession claim

Holding

The injunction was refused; the applicant failed to establish a prima facie case and was guilty of delay.

Reasoning

Applying Giella v Cassman Brown, the applicant had not shown a prima facie case with probability of success; the adverse possession claim required trial. The applicant had filed no injunction application in the earlier 2015 eviction suit, and the present application appeared to be an indirect attempt to bypass that earlier eviction case. Section 6 of the Civil Procedure Act favoured staying the latter suit, and the applicant appeared to have abandoned the injunction prayer by not submitting on it.

p. 6

Legal principles established

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  • The Environment and Land Court has no jurisdiction to stay criminal proceedings before a magistrates' court; such applications lie in the High Court.
  • Concurrent civil and criminal proceedings over the same subject matter are permissible and civil proceedings are no bar to a criminal trial.
  • A temporary injunction is a discretionary equitable remedy, not granted as of right.

Court orders

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  1. 1.The notice of motion dated 16th July, 2025 is dismissed with costs to the Respondent.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b), 162(3), 165, 165(5), 165(7)
  • Environment and Land Court Act, 2011Section 13(1), 13(2), 13(5)
  • Criminal Procedure Code (Cap 75)Section 193A
  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 40

Cases cited (4)

  • Benard Nyamanya Mogaka 2 others vs Peter Momanyi Kebati another DCI Kisii (Interested Party)
    2021 KEELC 2261 (KLR)
  • Republic vs Karisa Chengo 2 Others
    (2017) eKLR
  • Republic vs Director of Public Prosecutions; CMM (Exparte Applicant)
    (Judicial Review Application E004 of 2025) [2025] KEHC 4532 (KLR)
  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Environment and Land Court Act, 2011

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, "Tarus v Hustler Transport Limited (Enviromental and Land Originating Summons E017 of 2019) [2025] KEELC 8515 (KLR)", Case Analysis (2025). Notice of Motion dated 16th July, 2025 in Eldoret ELC (suit on adverse possession). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8515/eng@2025-12-04

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