[2018] KEELC 1932 (KLR)
The court found that the issue of jurisdiction is fundamental and must be resolved before the matter can proceed on its merits. If the court lacks jurisdiction, any proceedings would be null and void, resulting in wasted judicial and parties' resources. The application for stay was brought without undue delay,...
Source-derived case information.
- Citation
- [2018] KEELC 1932 (KLR)
- Parties
- Respondent: Kenya Urban Roads Authority; Respondent: The Minister for Roads; Applicant: Kisauni Bridge Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 10 of 2017
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- Application for stay of proceedings allowed with conditions.
- Judges
- AA Omollo
- Legal Topics
- Jurisdiction of Court, Stay of Proceedings, Transfer of Petition, Public Interest Litigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Urban Roads Authority
Respondent
The Minister for Roads
Respondent
Kisauni Bridge Limited
Applicant
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to hear and determine the petition.
- 2 Whether stay of proceedings should be granted pending the hearing and determination of the intended appeal.
- 3 Whether the application for stay was brought without undue delay.
Ratio Decidendi
The court found that the issue of jurisdiction is fundamental and must be resolved before the matter can proceed on its merits. If the court lacks jurisdiction, any proceedings would be null and void, resulting in wasted judicial and parties' resources. The application for stay was brought without undue delay, considering the intervening Christmas break. The court held that the threshold for stay under Order 42 Rule 6 was met. However, given the public interest and age of the case, the stay was qualified: the applicant must ensure the record of appeal is prepared, filed, and served within 90 days, failing which the stay lapses. Each party was ordered to bear its own costs.
Court Disposition
Application for stay of proceedings allowed with conditions.
Orders
- Proceedings stayed pending hearing and determination of the intended appeal, subject to the applicant preparing, filing, and serving the record of appeal within 90 days.
- In default of compliance, the order of stay shall lapse.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC PETITION NO. 10 OF 2017
(Formerly Constitutional Petition No. 31 of 2012)
IN THE MATTER OF: ARTICLE 22 OF THE CONSTITUION OF KENYA, 2010
IN THE MATTER OF: ALLEGED CONTRAVENTION OF THE BILL OF RIGHTS UNDER ARTICLES 10, 19, 20, 22, 23, 40, 64, 165 AND 258 OF THE CONSTITUTION OF KENYA 2010
BETWEEN
KENYA URBAN ROADS AUTHORITY.....1ST PETITIONER/RESPONDENT
THE MINISTER FOR ROADS...................2ND PETITIONER/RESPONDENT
VERSUS
KISAUNI BRIDGE LIMITED..............................RESPONDENT/APPLICANT
RULING
1. For determination is the notice of motion dated 10th January 2018 seeking for orders, that the Court be pleased to stay the proceedings herein pending the hearing and determination of the intended appeal to the Court of appeal. The reason for seeking stay of proceedings is premised on the fact that the Respondent/Applicant holds the opinion that the Environment and Land Court does not have jurisdiction to hear and determine the petition. The applicant submit that it has already filed a notice of appeal against the order which transferred the petition to this Court.
2. The petitioners have opposed the application vide their grounds of opposition dated 23. 2.2018 and 27th February 2018. One of the grounds state that the applicant has not demonstrated why they are uncomfortable to proceed in the Environment and Land Court which Court is clothed with jurisdiction to hear land matters. Secondly that the petition is of public importance and any delay affects the public at large. That this is an old matter that should be expeditiously determined.
3. The order transferring the petition to this Court was made on 5th October 2017. The present application was filed on 10. 1.2018 which is approximately 3 months from the date of the order being appealed against. Taking into consideration that there is Christmas break in between the 3 months, the present application was brought without undue delay.
4. It is a principle of law that a Court should down its tools where it finds that it has no jurisdiction. That in instances where proceedings are done without jurisdiction, the same are null and void ab initio. Consequently before this matter can proceed for determination on merits, it is imperative that the issue of jurisdiction raised by the applicant be resolved. Declaration of the proceedings as null and void in my view amounts to substantial loss as judicial time would have been wasted as well as the parties’ time and attendant legal expenses. For this reason I find the application meets the threshold set under order 42 rule 6 for stay of execution.
5. Mr Nguyo Wachira in opposing the application asked the Court in the alternative to qualify the orders of stay being given the public interest involved as well the age of the case. I find his submissions reasonable in the circumstances. Consequently I do allow the application by issuing an order staying the proceedings subject to the applicant taking steps in ensuring the record of appeal to the Court of Appeal is prepared, filed and served within a period of 90 days of this ruling. In default, the order of stay shall lapse. I make an order that each party bears their costs of the application.
Dated, signed & delivered at Mombasa this 18th September 2018
A. OMOLLO
JUDGE