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ELCPartially AllowedNot stated in ruling (formerly High Court Civil Suit filed 2nd December 2003)

Rotich v Bii (Environment & Land Case 8B of 2023) [2025] KEELC 3826 (KLR)

Environment and Land Court
12 May 2025
10,352 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled it cannot hear disputes about bank charges and auction sales, sending this 2003 land case back to the High Court.

What this practically means

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Executive summary

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This ruling by L. A. Omollo J of the Environment and Land Court, Kericho, determined a Notice of Motion dated 15th November 2024 by the Defendant (Elijah Kipngeno Arap Bii) seeking review of a suo motu High Court transfer order of 16th October 2023, a declaration that the ELC lacks jurisdiction over the suit, expungement of ELC proceedings, and return of the file to the High Court Civil Division. The underlying suit, filed in 2003, was brought by the Plaintiff for vacant possession and mesne profits over LR Kericho/Kabianga/1824, purchased at a public auction by Kenya Commercial Bank in exercise of its statutory power of sale. The Defendant counterclaimed, seeking a declaration that the sale was void ab initio, challenging the legality of the charge and service of statutory notices. The court framed four issues: review, jurisdiction, expungement, and costs. It held that as a court of equal status it could not review the High Court's order. On jurisdiction, applying the predominant purpose test and following Samuel Kamau Macharia, Jamal Salim and Co-operative Bank v Njuguna, it held that party consent cannot confer jurisdiction, and that the predominant issue - legality of the charge and the chargee's statutory power of sale - falls within the High Court's civil jurisdiction, not Article 162(2)(b). Vacant possession could not be determined before the legality of the charge was resolved. The application was allowed: the ELC was declared to lack jurisdiction, all ELC proceedings were declared a nullity and expunged, and the file was placed before the Presiding Judge of the High Court at Kericho for further directions, with costs in the cause.

Questions the Court framed

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

  1. 1.Whether this Court should review the orders issued on 16th October, 2023.
  2. 2.Whether this Court has jurisdiction to hear and determine this suit.
  3. 3.Whether the proceedings already undertaken in the suit should be expunged from the Court record.
  4. 4.Who should bear costs of the application.

Key legal issues

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01

Whether the ELC can review a transfer order made by the High Court

Holding

No - courts of equal status cannot review each other's orders

Reasoning

The transfer order of 16th October 2023 was made by Hon. Justice (Dr) J.K Sergon of the High Court, Kericho. Relying on Muiyoro v Mwaura and Bellevue Development Company Ltd v Gikonyo, the court held that judges of concurrent jurisdiction do not possess supervisory powers over each other; the review application was therefore incompetent insofar as it sought review of the High Court order.

p. 16
02

Whether the ELC has jurisdiction over the suit

Holding

No - the predominant issue is the legality of the charge, statutory notices and exercise of statutory power of sale, which falls within the High Court's civil jurisdiction

Reasoning

The court considered the pleadings in the main suit and counterclaim. The plaintiff's claim for vacant possession flows from a purchase at a chargee's auction; the defendant's counterclaim challenges the charge and statutory notices. Applying the predominant purpose test and Co-operative Bank v Njuguna, the mortgage/charge issues predominate, so vacant possession cannot be determined before legality of the charge is resolved.

p. 20
03

Whether consent of parties can confer jurisdiction

Holding

No - jurisdiction flows from the Constitution and legislation only

Reasoning

Relying on Samuel Kamau Macharia v KCB, Jamal Salim v Yusuf Abdulahi Abdi and Orange Democratic Movement v Yusuf Ali Mohamed, the court held that consent or acquiescence of counsel in the transfer cannot clothe the ELC with jurisdiction it does not have, and a jurisdictional objection may be raised at any stage.

p. 18
04

Whether proceedings already undertaken before the ELC should be expunged

Holding

Yes - they are a nullity

Reasoning

Having found that the court lacks jurisdiction over the suit, the court held that all proceedings undertaken in the matter before the ELC are a nullity and must be expunged from the record, consistent with the principle that a court without jurisdiction must down its tools.

p. 21

Legal principles established

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  • Jurisdiction is conferred by the Constitution and statute and cannot be conferred by consent or acquiescence of the parties
  • Courts of equal status lack authority to review each other's decisions
  • Where the predominant issue is the legality of a charge, statutory notices and exercise of statutory power of sale, jurisdiction lies with the High Court, not the ELC

Court orders

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  1. 1.Declaration that the Environment and Land Court lacks jurisdiction to hear and determine this suit.
  2. 2.Declaration that the proceedings that have taken place before the Environment and Land Court are a nullity and expunging them from the Court record.
  3. 3.That this file shall be placed before the Presiding Judge of the High Court sitting at Kericho for further directions.
  4. 4.That the cost of this application shall be in the cause.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 162(2)(b) and 165(3) of the Constitution of Kenya; Section 13 of the Environment and Land Court Act

Relief refused

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Review/vacation of the High Court's suo motu transfer order of 16th October 2023 by this Court

The ELC, being a court of equal status, cannot review an order made by the High Court

p. 16

Return/transfer of the matter to the High Court Civil Division, Nairobi

Instead the file is to be placed before the Presiding Judge of the High Court at Kericho for further directions

p. 21

Costs

The cost of this application shall be in the cause.

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.

No amount of consent can clothe this court with jurisdiction if it indeed has none.
p. 19Jurisdiction cannot be conferred by consent
The legality of the process pursuant to which the suit parcel was transferred to the Plaintifi/Respondent must first be interrogated before orders of vacant possession can be granted.
p. 20Predominant purpose / sequencing of relief
this Court sitting as an Environment and Land Court does not have the jurisdiction to review the order issued on 16th October, 2023 by the High Court.
p. 16Equal-status courts cannot review each other's orders
The Environment and Land Court lacks jurisdiction to hear and determine this suit.
p. 21Final orders - declaration
The proceedings that have taken place before the Environment and Land Court are a nullity and are hereby expunged from the Court record.
p. 21Final orders - nullity of proceedings
This file shall be placed before the Presiding Judge of the High Court sitting at Kericho for further directions.
p. 21Final orders - disposal of file

Issues in the judgment

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minor

The court declined to review the High Court's transfer order for lack of jurisdiction as a court of equal status, yet proceeded to determine the High Court's transfer was of no consequence by declaring the ELC lacked jurisdiction and expunging its own proceedings - the practical effect differs from the stated limitation.

minor

Paragraph 44 of the further affidavit refers to 'Lady Justice Christine Meoli' transferring the suit to Kericho High Court, whereas the record shows the transfer was made by Hon. Justice (Dr) J.K Sergon.

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, "Rotich v Bii (Environment & Land Case 8B of 2023) [2025] KEELC 3826 (KLR)", Case Analysis (2025). Not stated in ruling (formerly High Court Civil Suit filed 2nd December 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3826/eng@2025-05-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.