Ndutumi Auctioneers v Kwale International Sugar Co Ltd (Environment and Planning Appeal E001 of 2023) [2026] KEELC 4021 (KLR)
The bottom line
#A Kenyan court threw out arrest orders made against auctioneers because the magistrate never first ruled on the challenge to his own jurisdiction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to hear and determine the appeal herein
- 2.Whether the learned trial Magistrate erred in law and fact in reaching a finding and issuing Orders without first determining the question of jurisdiction raised by the Appellant
- 3.Whether the learned trial Magistrate erred in law and fact by violating the Appellants rights to fair hearing when he declined to hear and entertain the Appellants Preliminary Objection and motion when granting the Orders
- 4.Whether the learned trial Magistrate erred in law and fact when he suo moto issued warrants of arrest against the proprietors of the Appellant in violation of the right to fair hearing
- 5.What reliefs ought to issue
- 6.Who bears the costs of the appeal?
Key legal issues
#Jurisdiction of the ELC over the appeal
The appeal is properly before the ELC because the warrants derived from a decree relating to land and its use
The court traced the dispute to Mombasa ELC/HC Case No. 220 of 2011, founded on a settlement agreement of 26/10/2016 adopted as a court judgment on 2/10/2017, whereby vacant possession of land was to be rendered. The warrants of attachment derived from that decree concerning land, so the subject matter fell within Article 162(2)(b) and section 13 of the ELC Act, and the court found the suit in the trial court could not be said to be commercial.
Failure to determine the preliminary objection on jurisdiction first
The trial court erred by issuing orders including the 23 August 2023 orders without first determining the jurisdictional challenge
Applying Owners of Motor Vessel Lillian S and Ganjoni Properties, the court held that a jurisdictional challenge raised at the earliest opportunity must be decided right away before the merits or interim orders. The trial court filed a preliminary objection on 24/7/2023 but never heard it, and proceeded to issue orders as late as 23 August 2023 insisting its orders be obeyed before all else.
Su moto warrant of arrest
The trial court erred in issuing a warrant of arrest without a formal contempt application and without affording a hearing, contrary to Article 50(1)
The order for immediate arrest of the defendant was never pleaded or sought. Because arrest has far-reaching consequences on the freedom of the individual, due process and the fair-hearing guarantee in Article 50(1) required that no arrest issue absent a formal application for contempt and an opportunity to be heard.
Grounds prematurely before the first appellate court
The court declined to pronounce itself on grounds concerning pecuniary jurisdiction, hierarchy of courts, res judicata and sub judice because those issues remained pending before the trial court
The pecuniary jurisdiction question had not been argued or determined below and remained alive by dint of the notice of preliminary objection dated 24/7/2023. Similarly, the grounds on hierarchy of courts, res judicata, sub judice and setting aside warrants of attachment required the trial court to make a determination in the first instance after reviewing the documentation placed before it.
Legal principles established
#- A court seized of a jurisdictional challenge must determine it before all else before issuing any orders, including interim orders
- A warrant of arrest cannot issue in the absence of a formal application for contempt, and the individual must be accorded a hearing under Article 50(1)
Court orders
#- 1.The orders of the trial court Hon Z. Kiongo dated 14/7/2023 and 23rd August 2023 are hereby set aside
- 2.The Lower Court shall proceed to hear the preliminary objection and the applications pending before the said court
- 3.The above shall be heard on priority basis
- 4.Parties to bear their own costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Resident Magistrate's Court, Kwale
- Kwale Case E136 of 2023
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 read with section 13 of the Environment and Land Court Act
Relief refused
#Costs of the appeal
Not all grounds of appeal were upheld, so each party bears its own costs
Costs
Each party to bear their own costs of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
1. The orders of the trial court Hon Z. Kiongo dated 14/7/2023 and 23rd August 2023 are hereby set aside. 2. The Lower Court shall proceed to hear the preliminary objection and the applications pending before the said court. 3. The above shall be heard on priority basis. 4. Parties to bear their own costs of this appeal.
Jurisdiction is everything. Without it, a court has no power to make one more step.
Applying the decision of the Court of Appeal in Ganjoni Properties Ltd & 11 Others Vs. Al-Riaz International (supra) it is my finding that the trial court erred and ought to have determined the issue of jurisdiction before all else.
Clearly the trial court was in the wrong to have proceeded in the manner it did. The trial court erred.
Therefore the above being the genesis and nexus to the proceedings in the trial court, then this court has the requisite jurisdiction to hear and determine this appeal pursuant to Article 162(2)(b) of the Constitution of Kenya, 2010 read together with the provisions of section 13 of the Environment and Land Court.
Issues in the judgment
#Judgment describes the respondents inconsistently - at times plural ('plaintiff's respondents') and at times singular - and the actual name of the plaintiff/respondent is not stated in the judgment
The judgment cites 'section 78 of the Civil Procedure Rules' when section 78 is of the Civil Procedure Act
The suit below is referred to inconsistently as 'ELC No. 220 of 2011' and 'ELRC No. 220 of 2011' and 'Msa HCC No.220 of 2011'
Appellant's submissions state that Section 7 of the Magistrates Court Act sets pecuniary jurisdiction at 'Kshs 5,000'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndutumi Auctioneers v Kwale International Sugar Co Ltd (Environment and Planning Appeal E001 of 2023) [2026] KEELC 4021 (KLR)", Case Analysis (2026). Appeal against Kwale Case E136 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4021/eng@2026-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.