BY SAM ALFAN.
A company behind the demolition of a Sh80 million house in Westlands has challenged the powers of the Environment and Land court to determine a case before it.
Lariaki Properties limited argues the the court lacks jurisdiction to supervise the lower court.
Through lawyer Duncan Okatch, the company told Justice Oscar Angote that the supervisory jurisdiction is only granted to the High Court as established under Article 165(6) of the constitution.
He added that the supervisory role cannot apply to the Environment and Land Court as the said court is established under Article 162 of the constitution.
“It is already settled that the Environment and Land Court and together with Employment and Labour Relations Court are different from the High Court and it is settled that jurisdiction is everything and the same must flow from the constitution or any other statute therefore any actions by any court of law devoid of jurisdiction is null and void,” submitted lawyer Okatch.
On his part, auctioneer Zachariah Baraza who has been found guilty of contempt of court said the Court purported to arrogate unto itself supervisory jurisdiction under Section 3 and 18(1) (b) of the Civil Procedure Act yet the said provisions do not provide for and confer jurisdiction to ELC as they are not the statutory provisions for operationalising Article 162(3) of the Constitution on conferment of jurisdiction to ELC.
Okatch submitted that the auctioneer was cited for contempt of court and convicted without the contempt proceedings being filed because the case was not about contempt in the face of court.
He added that the auctioneer was cited for contempt and convicted without being served with the court order he is alleged to have disobeyed nor served with the mandatory disclaimer and Penal Notice warning him of the penal consequences in the event of any alleged disobedience of the court order.
He added that that the order in issue was not directed at the auctioneer but directed at the defendant/ respondent and any interpretation in the contrary would lead to ambiguity.
“Granted that there are no contempt on the face of court under consideration the only court with jurisdiction to hand any alleged contempt of the order would be the court that issued the same that is Principal Magistrate H.M Nga’ng’a as per Order 40 Rule 3 of CPR that is “….the court granting the injunction….”; indeed under the Magistrates Act read together with Order 40 Rule 3 of CPR only the magistrate court that issued the order has the ORIGINAL JURISDICTION to handle contempt proceedings,” submitted lawyer Okatch.
Lawyer Okatch told Justice Angote that the jurisprudential percepts and imperatives for contempt proceedings were not met nor canvassed on at all.
“In any event the auctioneer was condemned unheard there being no formal contempt proceedings in place to accord auctioneer sufficient and reasonable opportunity to be heard and impose the jurisprudential obligation on the respondent to prove to the required standard of just below beyond reasonable doubt the existence of a valid order from a court of competent jurisdictions, that the order was clear and unambiguous ,personal service of the order with penal notice indorsed on it upon the auctioneer and willful disobedience of the court order,” he added.
Association of Auctioneers has also applied to be joined on the case.
They urged the court to suspend and or review its orders issued on the 14th day of November 2022 convicting the Auctioneer Zachariah Baraza for Contempt of Court pending the hearing and determination of this application.
The association argues that the outcome of the Contempt proceedings herein are likely to have a farreaching implication to the entire members of the Association hence the need for the Association to participate in the proceedings.
The Association claims it has suffered irreparable damages and could be worse if the case proceeds without their input.
“One of the objective of the Professional Association is to advise members and defend their rights under the law and therefore the Association participation this case cannot be over emphasized,” says the association.