The auctioneer who was found to have illegally evicted a family in Westlands, Nairobi can continue to enjoy his freedom after his sentencing was halted.
This is after Zachariah Baraza who works with Siuma Auctioneers challenged the jurisdiction of the Environment and Land Court to adjudicate the matter.
Baraza, who was a no show in court on medical grounds, was found guilty of disobeying court orders on 14th November 2022 was set to be sentenced today.
His team of new lawyers led by advocate Ndegwa Njiru told Justice Oscar Angote that their preliminary objection challenges the ability of his court to hear the matter.
“This court lacks supervisory jurisdiction under order 40, rule 3 of the civil procedure rules,” Ndegwa said.
The court heard that unlike the High Court which is a “creature” of the constitution, the ELC was created through an Act of parliament and therefore, only enjoys equal status.
According to Ndegwa, the ELC can only handle a matter from the lower court if the matter was in way of an appeal.
“This court is a supervisor of the lower court. Its jurisdiction is to handle matters that arise as a way of an appeal from the lower court.
The lawyer added that the court that gave the order that was disobeyed is the one that should punish the contemnor.
The application is also supported by Lariak Properties Limited which had contracted the auctioneer to carry out the eviction.
Lariak lawyer Dancan Okatch said that they had also filed a similar application on jurisdiction.
The National Association of Kenya Auctioneers are also in the matter as interested parties.
Through lawyer Muhatia Pala, the association asked the court to stay the earlier order of conviction and/or review the same to allow them to go through the file so that they can be able to participate in the matter.
“The matter affects the whole auctioneering fraternity as a whole. Their input will allow the court to arrive at a just decision,” Pala said.
On Monday 14th, the judge found Baraza guilty of disobeying lower court orders by evicting the tenants of the said property.
The judge ruled that the order of the lower court issued on 18th October 2022 did not direct the auctioneer to evict the respondent, Metro Pharmaceuticals limited.
“The auctioneer went against the orders of the court as he did not have express authority from the lower court. He disobeyed the order by taking away properties of the respondent,” Justice Angote ruled.