BY SAM ALFAN.
The Court of Appeal will next month decide the fate of an auctioneer linked to demolition of a property in Westlands.
The auctioneer Zacharia Baraza moved to the Appellate court to challenge plans by the Environment and Land court to sentence him for demolishing the property despite a court order.
Appellate court judges Daniel Musinga, Dr. Imaana Laibuta and Kathulima M’Inoti said they will deliver their ruling on February 24.
The three judges directed the parties to maintain the status quo pending their ruling.
Justice Oscar Agote last year found auctioneer Baraza of contempt of court for going against the court orders to demolish Sh80 million house belonging to old couple in Westlands.
The Judge found that Baraza demolished the said house despite an order to stop the demolition.
Lariak Properties Ltd and Baraza and his company filed an application before the appellate court challenging Justice Angote’s decision that found him in contempt of court.
They filed the application through lawyer Duncan Okatch and further sought to suspend the proceedings before the Environment and Land court.
“Unless the application for stay is granted , the intended appeal shall be rendered nugatory as the superior court has already determined that him applicants are guilty of contempt of court orders and shall sentence him within the provisions of section 29 of the Environment and Land Court Act which provides that any person who fails to obey orders or directions issued under the Act commits an offence and shall be liable to a fine not exceeding Kenya shillings twenty million or two years imprisonment both,” they urged the court.
Baraza wants the court to suspend the proceedings before the Environment and Land Court between Lariak Properties Ltd and Metro Pharmaceuticals Ltd.
He is also pleading with the court of appeal to arrest Justice Angote ruling to rescue him from facing civil or paying a fine.
“This court be pleased to stay the ruling of justice Angote delivered on the 25th day of November 2022 and any further proceedings in the Nairobi Environment and Land Court Misc. No.19 of 2022-Lariak Properties Ltd and Metro Pharmaceuticals Ltd,” urged Baraza .
Lawyer Okatch told the appellate court appellants were condemned unheard despite the fact that contempt allegation are quast criminal in nature and therefore standard of proof is higher than that balance of probability.
Okatch further told the court that Environment and Land Court lacked jurisdiction to exercise supervisory jurisdiction.
“Judge Angote usurped the jurisdiction of the High court and failed to appreciate that the environment and Land Court has no supervisory jurisdiction over subordinate courts and can only deal with appeals arising from the decisions of the subordinate courts,” submitted lawyer Okatch.
Okatch submitted it was apparent that same supervisory jurisdiction that the parliament took away from the ELC cannot be conferred under sections 3 and 18(1) (b) of the civil procedure Act as such act is unconstitutional.
He added added that the constitution is very clear as it only grants the supervisory jurisdiction to the High court as established under Article 165(6) and therefore the same supervisory jurisdiction cannot apply to the ELC as the same is established under under Article 162 of the constitution.
“We humbly submit that it is an already settled jurisprudent that the Environment and Land Court and the employment and labour Relations court are not the same as the High court in as much as they are courts of the same status,” submitted Okatch.
Metro Pharmaceuticals Ltd through lawyer Ahmednasir Abdullahi opposed the the application and urged the court to dismiss it.
The veteran termed the proceedings are vexatious as he urged the court to dismiss it.
“The instant application and the deliberate omission of the registered owner of the suit property amounts to an abuse of court process. This court enjoys inherent jurisdiction to prevent and stop an abuse of court process which, Metro Pharmaceuticals Ltd beseeches it’s invocation,” Ahmednasir told the court.
He told the appellate judges that Lariak Properties Ltd and Baraza have deliberately picked on Metro Pharmaceuticals Ltd, a total stranger to the suit property (parcel of land known as land reference Number 1870/111/46) and instead deliberately omit to litigate against the true owner of the suit property which is the Estate of the late Batuk Lakhamshi Lalji .
SC Ahmednasir submitted that the litigation that does not bring to the table the owner of the property but instead litigates against a stranger , cannot be properly before the court.
