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Court of AppealPartially AllowedCivil Appeal No. 86 of 2017

Okiya Omtatah Okoiti & another v Afrison Export Limited & 11 others

Court of Appeal
25 September 2026
4,701 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Afrison Export Limited and Huelands Limited sued the Attorney General for the sale price and rental loss of L.R No. 7879/24, allegedly occupied by the Office of the President since 1988. By consent before Mabeya J, the court adopted the mean of three valuations and on 12th February 2013 entered judgment for Ksh 4,086,683,330 against the Attorney General; a further consent on 8th April 2013 varied the judgment to Ksh 2,400,000,000. The appellants, who were not parties to the suit, obtained leave to appeal in the public interest. The respondents raised preliminary objections on timeliness, the varied decree, res judicata arising from a later ELC petition, and new matters on appeal, all of which the Court rejected. On the merits, the Court held that although the O.S. was filed before the Environment and Land Court became operational, hearing had not commenced by 9th November 2012 when the Chief Justice's transitional Practice Directions were published; the matter should therefore have been transferred to the ELC. The High Court was consequently bereft of jurisdiction after that date, and all subsequent proceedings, including the judgment and the consent orders, were declared a nullity and set aside. The Court declined to determine the remaining grounds, including ownership and the validity of the procurement, and remitted the matter to the Environment and Land Court. Each party was ordered to bear its own costs of the appeal given the public interest element.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the proceedings before the High Court were a nullity ab initio for want of jurisdiction
  2. 2.Who owned the 96 acres suit property at the time of the purported sale
  3. 3.Whether the purported procurement of the suit property was constitutionally and legally valid
  4. 4.Did the sale violate the Banking Act and the Bankruptcy Act
  5. 5.Was the judgment faulty, bad in law and without consideration for public interest
  6. 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

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01

Whether the High Court had jurisdiction to conclude the land dispute after the establishment of the Environment and Land Court

Holding

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.

Reasoning

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.

p. 28
02

Whether objections to filing of the record of appeal out of time were still open to the respondents

Holding

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.

Reasoning

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.

p. 11
03

Whether the appeal was invalid for impugning a decree that had been varied by consent

Holding

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.

Reasoning

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.

p. 13
04

Whether the ELC Petition No. 1488 of 2016 rendered this appeal moot or barred by res judicata

Holding

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.

Reasoning

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.

p. 19

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 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. 3.The judgment and consent order set aside
  4. 4.Matter remitted to the Environment and Land Court for hearing and determination
  5. 5.Each party to bear its own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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

p. 32

Costs

Due to the public interest element of this matter, each party shall bear its own costs of the appeal.

Quotable passages

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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.
p. 34Final orders - nullity and remittal
Due to the public interest element of this matter, each party shall bear its own costs of the appeal.
p. 34Costs order
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.
p. 30Loss of jurisdiction by the High Court
jurisdiction exists or it does not. Neither can it be acquiesced or granted by consent of the parties
p. 30Jurisdiction cannot be conferred by consent
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.
p. 28Transitional allocation of land matters
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
p. 21Jurisdiction may be raised for the first time on appeal

Issues in the judgment

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minor

Conflicting dates for the High Court judgment

minor

Apparent typographical error in the year of a withdrawn suit

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, "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.