BY SAM ALFAN.
Environment and Land Court has dismissed an application by an auctioneer challenging the powers of the court to call for a file from a magistrate.
Justice Oscar Angote said he acted within the powers granted to the court after calling the file and punishing the auctioneer for purporting to interpret orders issued by a magistrate.
Lariak Properties Limited had challenged the powers of the court to call up for the file in the case where the auctioneer Zacharia Baraza has been convicted over contempt of court.
“In the circumstances, the court finds no merit in the preliminary objections dated 16th November and 17th November 2022. The preliminary objections are dismissed with no order as to costs,” ruled judge Angote.
The judge further ruled that the court acted lawfully when it convicted Baraza for contempt of court.
Baraza has since been charged with robbery with violence over the demolition of a house in Westlands.
The ELC court punished him for purporting to execute the orders of the lower court which led to demolition of Sh 20 million couple’s house in Westlands, Nairobi.
The judge said that the dignity and authority of the court must be protected, and those who flagrantly disorbey the court orders must be punished, lest it leads to a state of anarchy.
He said it is essential for the maintance of the rule of law and order that the authority and the dignity of a court is upheld at all times.
The ELC judge further said that the court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors.
“It is the plain and unqualifies obligation of every person against or in respect of who an order is made by the court of competent jurisdiction to obey it u less and until that order is discharged,” the added.
He ruled that the uncompromising nature of the above obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void.
Lariaki Properties limited had challenged the powers of the Environment and Land court to determine a case before it.
The company argued 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.
But the in his ruling dismissed saying when the auctioneer was asked why he purported to execute the orders of the court without the duly signed warrants by yhr Court, and contrary to the order that barred him from interpreting the order of the court to mesn ‘eviction,’ he never protested, neither did he assert that he was not aware of the orders of the court.
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.
