Okiya Omtatah Okoiti & another v Afrison Export Limited & 11 others
The bottom line
#Kenya's Court of Appeal voided a Ksh 2.4 billion land judgment because the High Court lacked jurisdiction over the land dispute after November 2012.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the proceedings before the High Court were a nullity ab initio for want of jurisdiction
- 2.Who owned the 96 acres suit property at the time of the purported sale
- 3.Whether the purported procurement of the suit property was constitutionally and legally valid
- 4.Did the sale violate the Banking Act and the Bankruptcy Act
- 5.Was the judgment faulty, bad in law and without consideration for public interest
- 6.Preliminary issues: timeliness of the appeal, validity of the notice of appeal against a varied decree, res judicata vis-à-vis ELC Petition No. 1488 of 2016, and whether new matters could be raised on appeal
Key legal issues
#Whether the High Court had jurisdiction to conclude the land dispute after the establishment of the Environment and Land Court
The High Court lost jurisdiction after 9th November 2012 because hearing of the O.S. had not commenced by the date of the Chief Justice's Practice Directions; the judgment and subsequent consent order are a nullity.
Article 162(2)(b) mandated establishment of the ELC, which commenced on 30th August 2011, with judges appointed on 3rd October 2012. The Practice Directions allowed part-heard land matters to continue in the High Court but required matters not yet set down for hearing to be transferred. The record showed hearing had not commenced by 18th December 2012, so the trial court should have transferred the matter. Jurisdiction cannot be granted by consent.
Whether objections to filing of the record of appeal out of time were still open to the respondents
No; the respondents failed to object within the thirty-day window under the proviso to Rule 84 and had already lost a similar application before a differently constituted bench.
Rule 84 requires a striking-out application to be brought within thirty days of service of the notice or record of appeal. The respondents did not object within that period, and a prior notice of motion by the 1st and 2nd respondents on the same ground had been dismissed because it was itself out of time. Remounting the challenge was impermissible.
Whether the appeal was invalid for impugning a decree that had been varied by consent
No invalidity arose; the appeal properly targets the decision of 12th February 2013, though attacking the consent order of 8th April 2013 not cited in the notice of appeal was impermissible.
A notice of appeal alerts affected parties of the decision sought to be appealed; a notice evincing a desire to appeal one decision cannot be used to mount an appeal against another. The memorandum of appeal made clear the target was the 12th February 2013 decision. In any event the outcome would not differ.
Whether the ELC Petition No. 1488 of 2016 rendered this appeal moot or barred by res judicata
No; the ELC did not and could not re-determine the issues raised before the High Court, so the decision in the ELC Petition did not render this appeal moot.
The ELC expressly declined to entertain contestation of ownership adjudged in HCCC No. 617 of 2012 absent a prayer to set aside that judgment, treating further litigation of ownership as res judicata. Its approach left the issues in this appeal intact.
Legal principles established
#- Where an environment and land matter filed in the High Court before the Practice Directions of 9th November 2012 had not commenced hearing by that date, the High Court lost jurisdiction and the matter ought to have been transferred to the Environment and Land Court; proceedings conducted thereafter are a nullity.
- Jurisdiction cannot be conferred by consent of the parties.
- An objection that an essential step in an appeal was not taken within the prescribed time must be brought within thirty days of service of the notice or record of appeal.
- A question going to the jurisdiction of the trial court is so important that it may be raised for the first time on appeal.
Court orders
#- 1.Appeal allowed
- 2.All proceedings after 9th November 2012, including the judgment of 12th February 2013 and the consent order of 8th April 2013, declared a nullity
- 3.The judgment and consent order set aside
- 4.Matter remitted to the Environment and Land Court for hearing and determination
- 5.Each party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Civil Case No. 617 of 2012
- Jurisdiction invoked
- Appeal under Rule 75(1) of the Court of Appeal Rules, 2010 by persons not party to the suit, in public interest, with extension of time granted
Relief refused
#Determination of the remaining substantive grounds (ownership, validity of procurement, Banking Act/Bankruptcy Act violations, public interest in the judgment)
The Court restrained itself from discussing the other issues following the nullity finding
Costs
Due to the public interest element of this matter, each party shall bear its 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.
The upshot is that we allow the appeal and declare all the proceedings after the 9th November 2012, including the judgment of 12th February 2013 and the consent order of 8th April 2013, a nullity. The same are set aside. The matter is remitted to the Environment and Land Court for hearing and determination.
Due to the public interest element of this matter, each party shall bear its own costs of the appeal.
As a consequence of that failure, the High Court was bereft of jurisdiction in the dispute after 9 th November 2012 and any proceedings after that date, including the impugned judgment and consent entered thereafter, are a nullity.
jurisdiction exists or it does not. Neither can it be acquiesced or granted by consent of the parties
The bright line in the Practice Directions issued by the Chief Justice was that, regarding environment and land matters filed before the date of the directions, only those in which hearing had commenced could the High Court retain jurisdiction to conclude.
we are confident that the ground that questions the jurisdiction of the High Court is so important that it can be raised for the first time on appeal
Issues in the judgment
#Conflicting dates for the High Court judgment
Apparent typographical error in the year of a withdrawn suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti & another v Afrison Export Limited & 11 others", Case Analysis (2026). Civil Appeal No. 86 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1778/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.