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ELCDismissedNot stated in the judgment (Notice of Motion dated 30th September, 2025)

Kato v Mwanthi (Environment and Land Miscellaneous Case E031 of 2025) [2026] KEELC 1141 (KLR)

Environment and Land Court
26 February 2026
2,123 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a landowner's attempt to have conflicting court orders clarified, ruling only the issuing court can interpret its own orders.

What this practically means

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Executive summary

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The Applicant, Cornelius Wambua Kato, moved the Environment and Land Court by Notice of Motion dated 30th September 2025 seeking interpretation and/or clarification of two orders he contended were conflicting: an injunction issued in his favour in Makindu ELC Case No. 25 of 2023 concerning Parcel No. 4394XXXX – Machinery, and eviction orders obtained by the Respondent in Machakos CMCC No. 390 of 2013 concerning Plot No. 1016 Utithi Settlement Scheme, both said to relate to the same shop. The Applicant argued, invoking Article 162(2)(b) of the Constitution, that the court could clarify the orders to preserve the integrity of judicial decisions. The Respondent opposed, contending that Machakos CMCC No. 390 of 2013 was fully determined in his favour, that the Applicant's appeal (Machakos ELC Appeal No. 49 of 2019) was dismissed and the further Court of Appeal application withdrawn, and raised a preliminary objection on res judicata, abuse of process and lack of jurisdiction, relying on Henderson v Henderson, Uhuru Highway Development Ltd v Central Bank of Kenya and Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd. The court framed a single issue: whether it had discretionary powers to grant the orders sought. Applying the Lillian S principle on jurisdiction, it held that the Applicant, having moved the court under Order 42 Rule 6 of the Civil Procedure Rules, had filed no appeal against the 2013 judgment, which had been litigated to the Court of Appeal without rebuttal. Relying on Simon Mayaka v Land Registrar-Kisii, it held that disputes over private rights concerning two distinct parcels cannot be determined by miscellaneous application, and that under Section 80 of the Civil Procedure Act only the court that issued an order may review it. The application was dismissed with costs to the Respondent.

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 is vested with discretionary powers to grant the orders sought by the Applicant

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction to interpret and/or clarify orders issued by subordinate courts in the absence of an appeal

Holding

The court has no such jurisdiction; the power to interpret, vary, review or clarify orders rests with the court that issued them or a higher court on appeal, and no appeal was on record.

Reasoning

The Applicant moved the court under Order 42 Rule 6 of the Civil Procedure Rules, which presupposes a pending appeal, yet no appeal had been filed. The decision in Machakos CMCC No. 390 of 2013 had been litigated through the ELC and the Court of Appeal without rebuttal by the Applicant. Section 80 review lies only in the court that made the order, and the Applicant did not demonstrate he had approached the subordinate courts.

p. 3
02

Whether substantive rights over two distinct parcels of land can be determined through a miscellaneous application

Holding

They cannot; procedural rules do not permit a substantive determination over two distinct properties without substantive pleadings on record.

Reasoning

The court observed that the two orders sought to be clarified touch on different suit properties, Plot No. 1016 Utithi Settlement Scheme and Plot No. 4394XXXX – Machinery, and relied on Simon Mayaka v Land Registrar-Kisii to hold that disputes over private rights must be brought by way of a suit, not a miscellaneous application.

p. 4
03

Whether the application is res judicata and an abuse of process

Holding

The court found the application incurably defective and dismissed it, accepting that there had been substantive prior litigation and determination of the matter.

Reasoning

The Respondent's preliminary objection and averments showed the matter had been fully determined in Machakos CMCC No. 390 of 2013, the appeal in Machakos ELC Appeal No. 49 of 2019 was dismissed, and the Court of Appeal application was withdrawn. The Applicant did not rebut these averments.

p. 5

Legal principles established

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  • A court must satisfy itself that it has jurisdiction before taking any step in proceedings; without jurisdiction it must down tools.
  • A dispute as to private rights of parties cannot be determined by way of a miscellaneous application; a suit must be instituted by plaint, originating summons or other acceptable procedure.
  • Only the court that issued an order (on review under Section 80 of the Civil Procedure Act) or a higher court on appeal may interpret or clarify that order.

Court orders

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  1. 1.The Notice of Motion dated 30th September, 2025 is dismissed with costs to the Respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution invoked by the Applicant; the court found no jurisdiction conferred to interpret subordinate courts' orders outside Section 26 of the Environment and Land Court Act

Relief refused

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Interpretation and/or clarification of the allegedly conflicting orders in Makindu ELC Case No. 25 of 2023 and Machakos CMCC No. 390 of 2013

The court lacks jurisdiction to interpret orders it did not issue; the two orders concern different parcels of land; and no substantive pleadings or appeal were on record. Section 80 review lies only in the court that made the order.

p. 4

Stay of execution under Order 42 Rule 6 of the Civil Procedure Rules

No appeal has been filed against the judgment in Machakos CMCC No. 390 of 2013, and the matter was already litigated up to the Court of Appeal.

p. 3

Costs

The application is dismissed with costs to the Respondent.

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.

Jurisdiction is everything. Without it, a court has no power to take one more step.
p. 3Jurisdiction of courts
This court cannot exercise discretionary powers over orders it did not issue.
p. 4Power to interpret or review court orders
the rules of procedure cannot allow the court to make a substantive determination over a legal dispute touching on two distinct properties without substantive pleadings being on record.
p. 4Miscellaneous applications and substantive disputes
In the end, this Court has not been properly moved in order to exercise its inherent jurisdiction to grant the orders sought by the Applicant. The present application is incurably defective and is dismissed with costs to the Respondent.
p. 5Disposition

Issues in the judgment

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minor

The judgment does not state the name of the Respondent or the case number/neutral citation of the present miscellaneous application.

minor

The judgment does not expressly state the court station where it was delivered.

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, "Kato v Mwanthi (Environment and Land Miscellaneous Case E031 of 2025) [2026] KEELC 1141 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 30th September, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1141/eng@2026-02-26

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