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Ndutumi Auctioneers v Kwale International Sugar Co Ltd (Environment and Planning Appeal E001 of 2023) [2026] KEELC 4021 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELC 4021 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Environment and Planning Appeal E001 of 2023 AE Dena, J June 30, 2026 Between Ndutumi Auctioneers Appellant and Kwale International Sugar Co Ltd Respondent (Being an Appeal against the Order of the Hon Kiongo Kagenyo Resident Magistrate in Kwale Case E136 of 2023 delivered on the 14th July 2023 and 23rd August 2023.) Judgment 1Aggrieved by the orders of Hon Kiongo Kagenyo Resident Magistrate in Kwale Case E136 of 2023 delivered on the 14th July 2023 and 23rd August 2023, the Appellant Ndutumi Auctioneers penned the following grounds of appeal in the Memorandum of Appeal dated 24th day of August 2023; - 1.The learned trial Magistrate errored in law and fact in reaching a finding and issuing Orders without first determining the question of jurisdiction raised by the Appellant. 2.The learned trial Magistrate erred in law and fact in making Orders without being cloth with the necessary and requisite pecuniary jurisdiction. 3.The learned trial Magistrates erred in law and fact by granting Orders whose effect are in violation of the doctrine of hierarchy of court, res judicata and sub judice. 4.The learned trial Magistrates erred in law and fact by granting Orders whose effect is to set aside warrants of attachment issued by a superior court. 5.The learned trial Magistrate erred in law and fact by issuing Orders over a matter that had not been cause list (sic) 6.The learned trial Magistrate erred in law and fact by granting Orders whereas there exists similar motion pending before a superior court. 7.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. 8.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. 9.The learned trial Magistrate erred in law and fact by failing to apply the law and circumstances of the case in granting the Order herein contested. 10.The learned trial Magistrate erred in law and fact when he failed to consider the Appellant arguments, submissions and authorities when arriving at his decision. 2.On the strength of the above grounds the Appellant seeks that the appeal against the Ruling & Order of the learned trial Magistrates delivered on the 14th July 2023 and 23rd August 2023 be allowed with costs. Submissions 3 .This court directed that the appeal proceeds by way of written submissions which parties filed and exchanged. Appellants Submissions 4 .The Appellants submission are dated 8/07/2024 and condensed the grounds in the Memorandum of Appeal into 4 issues.1.Whether the learned trial Magistrate had jurisdiction.2.Whether the Orders granted were in violation of the doctrine of hierarchy of courts, res judicata and sub judice3.Whether the trial court errored in law and fact when it declined to hear the Appellants Preliminary Objection dated 24th July 20234.Whether the trial court errored in issuing warrants of arrest 5 .On issue No. 1 and 2 it is submitted that Section 7 of the Magistrates Court Act No 26 of 2015 sets the pecuniary jurisdiction of a Resident Magistrate at Kshs 5,000. The learned Resident Magistrate assumed jurisdiction yet the warrants of attachment giving rise to the impugned orders was for a sum of Kshs 7,553,500/= being the balance of the decretal sum in Mombasa ELC No 220 of 2011 Tsola Mzungu Kalama and Others Vs Kwale Sugar Co Ltd and which sum was way above the pecuniary jurisdiction of the learned trial Magistrate. Therefore the court had no jurisdiction to take a single step. The orders and entire proceedings are termed null and void. Reliance is placed in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & 2 Others [2012] eKLR- Supreme Court; Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd. (1989) and Macfoy v United Africa Co LTD [1961] 3 All ER, 1169, 6 .On issue No. 3 it is submitted that prior to the Respondent moving the Court in Kwale the Respondent had previously filed before the Court in Mombasa ELC No 220 of 2011 two motions seeking similar restraining Orders against the Appellant herein. The Appellant was made a party and Orders were sought against them. The court declined to grant the Orders sought by the Respondent herein. While the said motion was pending hearing and determination the Respondent decided to approach the Resident Magistrates court in Kwale for the same Orders. The motor vehicle registration numbers being the same as those in the motion before the trial Magistrate. 7 .It is urged that the Resident Magistrate sitting in Kwale was an inferior court as compared to the Environment & Land Court which was entertaining similar motions between the same parties herein. That the Resident Magistrate Kwale is bound by the decision of the Environment and Land Court and cannot purport to hear the same motion between the same parties which the Environment and Land Court in Mombasa was entertaining in Mombasa ELC No 220 of 2011. That this offended the provisions of Section 6 of the Civil Procedure Act on subjudice rule. 8 .That the Orders issued by the trial Magistrate were in conflict with settled principles of law on hierarchy of courts and sub judice. The legal effect of the Orders granted by the Resident Magistrate was to vacate and/or set aside validly issued warrants of attachment issued by the Court in Mombasa ELC No 220 of 2011. 9 .On issue No.3 it is urged that the Appellant was not given an opportunity to argue the Preliminary Point which was filed as early as 24th July 2023 thus denying the Appellant the equality of hearing and or equality of arms or giving them an adversarial hearing. The right of the Appellant to fair hearing was violated as a result. Once a Preliminary Point is raised it must be determined immediately. To buttress this point reliance was placed on the case of Registered Trustees of The Catholic Archdiocese of Nyeri and Another Versus Standard Limited and Others (2003) 1 EA Page 253 and Bake n Bite Limited Vs Rachel Nungare & 15 Others Civil Appeal No 57 of 2017. 10 .It is asserted that the decision to Order for the arrest of the Appellant was never pleaded by the Respondent. The Court suo moto made an Order for the immediate arrest of the Appellant without affording him a hearing leading to denial of justice. Reliance is placed on the Court of Appeal decision in David Sironga ole Tukai vs. Francis arap Muge & Others, Respondents Submissions 11 .The respondents’ submissions are dated 2nd December 2024. 12 .It is submitted that under paragraph 12 of the Plaint, particulars of illegality were set out therein, including, attaching the Plaintiff/ Respondent’s vehicles by non-existent warrants, in a matter it has never been a party to, vandalism, failure to exercise due diligence and failure to follow laid down rules as per Section 23(1) & (2) of the Auctioneers Act, and rule 12 (c) of the Auctioneers Rules, 1997. The Plaintiff/ Respondent sought general, exemplary/ punitive damages in respect to liability for illegal, unprocedural, defective, and unlawful acts committed by the Appellant. The civil suit in the lower courts is an unliquidated claim, whereof the issue of pecuniary jurisdiction does not arise. 13 .That under Section 26 of the Auctioneers Act, No. 5 of 1996, any person who suffers from any special or general damages by the unlawful or improper exercise of any power by a licensed auctioneer shall be entitled to recover any damages directly suffered by him from the auctioneer by action. To buttress this position the court is referred to the case of Shah Rekhavanti Pankaj v Bank of Baroda (K) Kenya Limited & Sportlight Intercepts Auctioneers [2020] eKLR, Jacob Ochieng' Muganda v Housing Finance Company of Kenya Limited [2002] Eklr and Syrilla A. Barasa & 2 others v Margaret Aseka Barasa [2022] eKLR. 14 .In view of the foregoing it is submitted that the trial magistrate is clothed with jurisdiction to preside over the civil suit in the lower court. 15 .It is contended that this court lacks jurisdiction to hear and determine this appeal. That the Respondent action against the Appellant is strictly a civil claim and has no nexus with environment, land and its use, occupation or title deed to warrant any appeal for orders therein in this specialised court. 16 .That if the appellant was aggrieved with any orders issued by the trial magistrate, then he should have traced the suit ELRC No. 220 of 2011: Plaintiff vs Kwale International Sugar Company Limited which it purported to execute warrants issued by the Chief Magistrate Mombasa and filed a reference within it in line with mandatory provision of Section 34 of the Civil Procedure Act and/or appealed the orders in the High Court in line with Order 43 of the Civil Procedure Rules 2010. 17 .That the Appellant has mischievously approached this Honourable Court under Order 45 of the Civil Procedure Rules which provide for review of orders, and does not confer any jurisdiction to this Court to preside over the instant appeal. 18 .Reliance is placed on the cases of Goddrick Simiyu Wanga -v- Republic (S C Petition No. E030/2023); Nasra Ibrahim Ibren -v- Independent Electoral and Boundaries Commission & 2 others [2018] eKLR and “Owners of Motor Vessel “Lilian S” – Versus - Caltex Oil (Kenya) Limited (1989) IKLR 19 .The Court is urged to dismiss this appeal for want of jurisdiction. Analysis And Determination 20 .I have examined and considered the record of the trial court. Before this court distils the issues for determination, I find it pertinent to deal with some preliminary issues which I must clarify as a court sitting on this interlocutory appeal. 21 .This is an interlocutory appeal against specific orders issued by the trial court presided by Hon Z. Kiongo. The orders are dated 14th July 2023 and 23rd August 2023. There are jurisdictional issues as well as procedural concerns that have been raised by the appellant. The respondents have also ably responded thereto. 22 .I must observe that there are some grounds of Memorandum of appeal that this court would not be seized of jurisdiction to pronounce itself on. I will identify the grounds and explain why. 23 .It has been urged that the learned trial Magistrate erred in law and fact in making Orders without being cloth with the necessary and requisite pecuniary jurisdiction. The issue on whether the trial court has pecuniary jurisdiction or not can only be pronounced by the trial court. The matter has not yet been argued before the said court and infact it is still alive by dint of the Notice of preliminary objection dated 24/7/2023. Having perused the proceedings in the trial court the same has not been determined. 24 .I will then look at three other grounds of appeal where the Appellant has urged that The learned trial Magistrates erred in law and fact by granting Orders whose effect are in violation of the doctrine of hierarchy of court, res judicata and sub judice; The learned trial Magistrates erred in law and fact by granting Orders whose effect is to set aside warrants of attachment issued by a superior court and further that the learned trial Magistrate erred in law and fact by granting Orders whereas there exists similar motion pending before a superior courts. 25 .Concerning the above grounds, the same reason will apply. It behoves the trial court to pronounce itself on the questions raised after reviewing the documentation placed before it and make a determination in the first instance. The issues are prematurely raised before this court sitting on its appellate jurisdiction. 26 .Having resolved the above I will then proceed and identify the issues that commend determination before this court. This is a first appellate court and the court is guided by the provisions of section 78 of the Civil Procedure Rules which provides; -“Subject to such conditions and limitations as may be prescribed, an appellate court shall have power;(a)to determine a case finally;(b)to remand a case;(c)to frame issues and refer them for trial;(d)to take additional evidence or to require the evidence to be taken;(e)to order a new trial.(2,)Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.” 27 .The following issues are for determination; -1.Whether this court has jurisdiction to hear and determine the appeal herein2.Whether 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 issue6.Who bears the costs of the appeal? 28 .The court will tackle the issues concurrently as they overlap. Whether this court has jurisdiction to hear and determine this appeal 29 .The locus classicus on jurisdiction in Kenyan jurisprudence remains the celebrated dictum of Nyarangi, JA in Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Limited [1989] KLR 1, where the learned judge stated thus:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction." 30 .The Supreme Court in the Matter of Interim Independent Electoral Commission [2011] eKLR (Constitutional Application No. 2 of 2011) further affirmed that jurisdiction flows from either the Constitution or legislation or both, and that a court cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. 31 .The jurisdiction of this court to hear and determine this appeal has been questioned on the basis that the Respondent action against the Appellant is strictly a civil claim and has no nexus with environment, land and its use, occupation or title deed to warrant any appeal for orders therein in this specialised court. 32 .Arising from the above objection it behoves the court to look at the pleadings filed in the trial court (see page 6 -9 of the Record of Appeal). At paragraph 9 -10 of the plaint, it is pleaded that upon perusal of the advertisement the plaintiff learnt that the warrants were received from ‘The Chief Magistrate Court, Mombasa in ELRC No. 220 of 2011: Plaintiff Vs. Kwale International Sugar Company Limited.’ It is further deponed that the plaintiff is a stranger to the said suit and neither was he aware of such suit. It would appear that the said suit is said to be non-existent and the execution levied illegal – the particulars are listed under paragraph 12 of the plaint. The plaintiff sought that the trial court set aside the advertisement for sale of vehicles, a mandatory injunction compelling the Defendant to return the motor vehicles; General & exemplary Damages for illegalities committed by the defendant. 33 .Together with the plaint the respondents herein filed a Notice of Motion application dated 14/7/2023 under certificate of urgency seeking for orders restraining the auctioneers herein from interalia advertising and auctioning the plaintiff/respondent motor vehicles whose particulars were given. They also sought that the auctioneers be compelled to return the said motor vehicles to the plaintiff and or alternatively the OCS Msambweni police to trace, recover and handover the same to the plaintiff/respondent. The trial court granted the orders exparte in the first instance. 34 .The Defendants/Appellant responded to the suit by way of defence dated 24/7/2023, they also filed a replying affidavit to the application, notice of preliminary objection and Notice of Motion all of even date. The Motion sought to set aside the exparte orders issued by the trial court for non-disclosure of the existence of Mombasa in ELC No. 220 of 2011: Tsola Mzungu Kalama & Others Vs. Kwale International Sugar Company Limited. It was alleged the plaintiffs/respondents were aware of the existence of the said suit where they had filed applications seeking similar orders which were declined by judges of the ELC in Mombasa but were later withdrawn and marked as settled with one pending interpartes hearing. The defence questioned the jurisdiction of the court to hear the matter. 35 .It would appear that the main contestation is that the suit ‘The Chief Magistrate Court, Mombasa in ELRC No. 220 of 2011: PLaintiff Vs. Kwale International Sugar Company Limited’ does not exist and which is alleged to have been confirmed by the Court Registry and the court online system. That the same applies to the alleged warrants of attachment. As a result, the attachment and proclamation are termed illegal and unlawful. That as such the plaintiff respondents were not aware of the same and are thus strangers thereto. For this reason, the plaintiffs moved the trial court against the auctioneer for the illegalities. 36.I have reviewed the entire record of appeal and proceedings and I must state that it is clear that the parties have all along been feuding in Msa HCC No.220 of 2011 where a consent was adopted as an order of the court and even part payment had been made by the plaintiffs’ respondents herein towards meeting the decree. The suit in the trial court was filed on 17/7/2023. As at 22/6/2023 before the filing of the suit, Mr. Njuru acting for the plaintiffs/respondents wrote to Dr. Annette Mbogoh of Kituo cha Sheria about the suit Msa. HCC No. 220 of 2011 Tsola Mzungu Kalama & Others Vs Kwale International Sugar Company Limited. The letter refers to Mr. Nyanges instructions to Ndutumi Auctioneers vide warrants dated 7/3/2023. He states they are informed that his client’s vehicles had been attached to settle Kshs. 7,553,500 as per the warrants and he attached the warrants. The letter refers to the consent order adopted as the judgement of the court and a number of concerns against it. The letter urges that the execution be halted to allow for reconciliation of the books by all the parties. 37.What seems to me to have happened was an error on the face of the warrants in the particulars of the case, but not that the plaintiffs’ respondents were not aware of the warrants or that the suit did not exist. Additionally based on an application filed by the respondent herein in Mombasa in ELC No. 220 of 2011 and specifically page 80 -81 which is a certificate of urgency it is clear that the dispute is anchored on a proclamation following a settlement agreement of 26/10/2016 adopted as a judgement of the court on 2/10/2017. The settlement was for the plaintiffs to render vacant possession to the Respondents who were defendants in the said suit. The warrants derived from the said decree which related to land and its use. The claim in the trial court therefore cannot be said to be commercial. 38.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. 39.In any event if the warrants are from a decree of the ELC only the ELC would be in a position to call for the ELC file in Mombasa for purposes of authenticating the information placed before it. The High Court sitting pursuant to its commercial jurisdiction would be incapacitated in this regard. The court is persuaded and draws guidance from the case Bruce Odeny & Co. Advocates v Pride Kings Security Services Ltd (Miscellaneous Criminal Application E115 of 2023) [2024] KEHC 5002 (KLR) (15 May 2024) (Ruling) 40.I will now interrogate whether the learned trial Magistrate errored in law and fact in reaching a finding and issuing Orders without first determining the question of jurisdiction raised by the Appellant and whether it violated the Appellants rights to fair hearing. 41.I have already noted based on the record the appellants did file in the trial court a Notice of preliminary objection dated 24/07/2023. The preliminary objection questioned the jurisdiction of the trial court to hear the matter on various grounds. 42.However what concerns this court is the events that happened after the Notice of preliminary objection was filed. It is trite that a preliminary point on jurisdiction ought to be raised at the earliest opportunity in a case. It must also be settled without delay. The court in Owners of Motor Vessel Lilian “S” -vs-Caltex Oil (Kenya) Ltd [1989] eKLR, took the view that where the issue of jurisdiction is raised the Court has to determine it before it can deal with the merits of the matter. Where it holds that it has no jurisdiction it has to down its tools. 43.In the case of Ganjoni Properties Ltd & 11 Others Vs. Al-Riaz International Limited; F. Kinyua Kamundi & Muya D.T t/a Kinyua Muyaa & Co. Advocates & 11 Others (Affected Party) (Civil Appeal E090 & E091 of 2022 (consolidated) (2025) KECA 1711 (KLR) The Court of Appeal dealt with the question whether the learned judge was at fault in failing to determine the jurisdictional challenge before all else reiterated thus; -‘47In Owners of Motor vessel ‘Lilian S Vs Caltex oil (Kenya) Ltd (1989) Nyarangi JA held that; -‘...a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where the court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence…. 44.The court of appeal further pronounced itself thus; -51.‘……Though expected to pronounce itself on the jurisdictional challenge before all else, the learned judges before whom those objections including Mary Kasango, J, P.J.O. Otieno J and Njoki Mwangi J whose impugned ruling is the subject of the instant appeal, were at fault in failing to determine the objections before pronouncing themselves on other issues and making far reaching orders albeit interim in nature. For the learned judge (to wit Njoki Mwangi J) to elect to determine the jurisdictional challenge in tandem with the contempt proceedings was in our respectful view, a decision in error as a matter of principal and procedure.’ 45.In the case filed in the trial court the record shows that the preliminary objection was not heard though filed at the earliest opportunity and before the interpates hearing of the Notice of Motion dated 14/7/2023. The trial court proceeded to make orders as late as 23rd August 2023 for the tracing of the plaintiff’s motor vehicles and once traced to be put at Diani Police Station and further issued a warrant of arrest against the defendant. The trial court insisted that its orders must be obeyed before all else yet the jurisdiction of the court had been questioned. And I’m not saying that court orders should be ignored. 46.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. 47.My findings above will also apply to the orders for the arrest of the defendant appellant. Moreover, the question that arises is could the warrant of arrest be issued in the manner it did? In my view there was no foundation upon which the said orders could be issued in the absence of a formal application for contempt of court. The order of the arrest had far reached consequences on the freedom of an individual and therefore the need to accord the individual an opportunity to be heard which is a right protected and guaranteed by Article 50 (1) of the Constitution of Kenya 2010. Clearly the trial court was in the wrong to have proceeded in the manner it did. The trial court erred. 48.On the basis of the foregoing this appeal is partly merited on the grounds the court has analysed hereinbefore and will be allowed accordingly. 49.What orders and or reliefs should this court issue? I have already noted and made a finding that the trial court must determine the issues as raised before it in the preliminary objection and the pending applications before it as it may deem appropriate. 50.As to costs since not all grounds of appeal have been upheld, I think parties should bear their own costs of this appeal. 51.Consequently the appeal having partly succeeded the court hereby orders and direct as follows; -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.Orders accordingly. JUDGEMENT DATED SIGNED AND DELIVERED THIS 30TH DAY OF JUNE 2026……………….A.E DENAJUDGEMr. Kulecho for the RespondentsNo Appearance for the AppellantDaniel Disii -Court Assistant