[2016] KEHC 5304 (KLR)
The High Court lacks jurisdiction to hear and determine disputes relating to occupation, ownership, or title to land following the promulgation of the 2010 Constitution and the enactment of the Environment and Land Court Act. The Constitution expressly reserves such matters for the Environment and Land Court, and...
Source-derived case information.
- Citation
- [2016] KEHC 5304 (KLR)
- Parties
- Plaintiff: Abdi Kadir Hussein; Defendant: Moses Kipkirui Koros; Defendant: Nancy Cherono Bunei; Interested Party: Teleposta Pension Scheme Registered Trustees; Interested Party: Peter Kingori Maina; Interested Party: Esther Onsembe; Interested Party: Amos K.C. Kale Maina & Steve K. Bundotich T/A Kale Maina & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 458 of 2008
- Procedural Posture
- Civil Case / Ruling on Jurisdiction
- Outcome
- Matter referred to the Environment and Land Court for hearing and determination.
- Judges
- RE Aburili
- Legal Topics
- Jurisdiction of Courts, Transfer of Land Disputes, Environment and Land Court, Constitutional Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdi Kadir Hussein
Plaintiff
Moses Kipkirui Koros
Defendant
Nancy Cherono Bunei
Defendant
Teleposta Pension Scheme Registered Trustees
Interested Party
Peter Kingori Maina
Interested Party
Esther Onsembe
Interested Party
Amos K.C. Kale Maina & Steve K. Bundotich T/A Kale Maina & Co. Advocates
Interested Party
Procedural Posture
Civil Case / Ruling on Jurisdiction
Legal Issues
- 1 Whether the High Court has jurisdiction to hear and determine disputes relating to occupation, ownership, or title to land after the promulgation of the 2010 Constitution.
- 2 Whether the matter should be transferred to the Environment and Land Court.
Ratio Decidendi
The High Court lacks jurisdiction to hear and determine disputes relating to occupation, ownership, or title to land following the promulgation of the 2010 Constitution and the enactment of the Environment and Land Court Act. The Constitution expressly reserves such matters for the Environment and Land Court, and the transitional period allowing the High Court to continue hearing such cases has lapsed. Therefore, the matter must be referred to the Environment and Land Court, Nairobi, as the court of competent jurisdiction.
Court Disposition
Matter referred to the Environment and Land Court for hearing and determination.
Orders
- The suit is referred to the Environment and Land Court, Nairobi, for hearing and determination.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 458 OF 2008
ABDI KADIR HUSSEIN…………………………………………….PLAINTIFF
VERSUS
MOSES KIPKIRUI KOROS ……………………...………….1ST DEFENDANT
NANCY CHERONO BUNEI…………………………………2ND DEFENDANT
TELEPOSTA PENSION SCHEME
REGISTERED TRUSTEES………………….…….1ST INTERESTED PARTY
PETER KINGORI MAINA…………………….….2ND INTERESTED PARTY
ESTHER ONSEMBE……………………………….3RD INTERESTED PARTY
AMOS K.C. KALE MAINA & STEVE K. BUNDOTICH
T/A KALE MAINA & CO. ADVOCATES…......…….4TH INTERESTED PARTY
RULING
This suit was instituted vide plaint dated 16th October 2008 on the same day. The plaintiff’s claim against the 1st and 2nd defendants is eviction from land No. LR Nairobi/Block 34/160 unit No.2 ;a declaration that the 1st and 3rd defendants occupy the suit premises illegally; costs and any other remedy deemed just and expedient .
Albeit the suit was instituted before 2010 when the new constitution was promulgated, Article 162(2) (b) of the Constitution is clear that disputes relating to occupation, ownership or title to land shall be heard and determined by the court contemplated therein. In addition Article 165(5) (b) of the Constitution expressly ousts the jurisdiction of the High Court from hearing and determining disputes preserved for the court contemplated in Article 162(2) of the Constitution.
That being the case, it is crystal clear that the jurisdiction of the this court is ousted and vested in the Environment and Land Court as established under Section 4 of the Environment and Land Court Act, 2011. Section 13 (1) of the said Act spells out the jurisdiction of the court. Under Subsection (7) thereof, the orders that the court is empowered to make are stipulated.
For the above reasons, and as jurisdiction is everything, without which, this court would be acting in vain. The matter is not part heard to invite the discretion of this court to continue with it under Section 22 of part 5 of the transitional and consequential provisions of the Constitution on administration of justice. Furthermore, there is established a court of competent jurisdiction, the ELC which is fully operational and therefore the transitional period id spent. Accordingly, I must down my tools and say no more thing than refer this matter to the court with competent jurisdiction to hear and determine this dispute and that court is the Environment and Land Court, Nairobi.
Orders accordingly.
R.E. ABURILI
JUDGE
20/4/2016