[2022] KEHC 11015 (KLR)

Ambeba v Imbote (Civil Appeal 59 of 2014) [2022] KEHC 11015 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11015 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 59 of 2014

WM Musyoka, J

June 10, 2022

Between

Clark Ambeba

Appellant

and

Zephania William Imbote

Respondent

(From ruling and order of Hon. MI Shimenga, Resident Magistrate, in Butere PMCCC No. 6 of 2011, of 8th May 2014)

Judgment

1. The original trial records in Butere PMCCC No. 6 of 2011 have not been availed, contrary to Order 42 Rule 13(4) of the Civil Procedure Rules, despite my making numerous orders that they be availed, including the orders of 26th September 2019, 18th November 2019 and 8th July 2020, when I directed that the Deputy Registrar call for those records. I shall, nevertheless, proceed to determine the matter in the absence of the same.

2. The suit before the trial court was for compensation, with respect to returns that the respondent expected to get, per acre of maize, affected by eucalyptus trees that the appellant had planted on their common boundary on Kisa/Emasatsi/1465. The respondent’s complaint was that the land belonged to him, and he occupied it, and grew maize and beans on it, but the appellant had planted eucalyptus trees on the boundary, which affected his maize and bean crop, and he wanted the appellant to cut down the mature eucalyptus trees, and plant them some distance from the boundary. Compensation was sought for failure by the appellant to cut down the trees, and plant them away from the boundary.

3. The appellant filed a defence and counterclaim, denying that he had planted eucalyptus trees on the boundary. He accused the respondent of interfering with the common boundary, and said that he had resisted efforts to have the surveyor establish the correct boundary. He also accused the respondent of creating an illegal road access on the land without his consent. He counterclaimed for mesne profits, for the three years that the respondent had allegedly been in illegal occupation of his land.

4. The trial court took evidence from the parties, and delivered a judgment on 6th June 2013, wherein it allowed the claim for compensation, on the basis of the report by the agricultural officer, that the respondent’s crop had been damaged by the appellant’s eucalyptus trees, which had been planted too close to the boundary.

5. The respondent then moved the court by interlocutory application, seeking to have the offending eucalyptus trees cut down, as it was planting season, and the appellant had not yet cut them down, and he feared that, if they were not cut down, they would affect his crops. The court, basing itself on the judgment of 6th June 2013, found that it would be in the best interests of justice that the trees be cut down. The application was allowed, and the appellant was given fourteen days to cut down the trees, otherwise, in default, the respondent would be at liberty to cut them down himself. That ruling was delivered on 8th May 2014, and it prompted the filing of the instant appeal.

6. On 8th July 2020, I directed the parties to file written submissions, on the issue of jurisdiction. Both sides did file written submissions, but none of them addressed jurisdiction. I had raised the issue of jurisdiction several times prior to that, hoping that the parties would take the cue, and do the right thing, withdraw the appeal, and file another at the right forum, but to no avail.

7. The dispute in Butere PMCCC No. 6 of 2011 revolved around boundary, occupation of land and land use. The court with jurisdiction, on boundaries, occupation of land and land use, is the Environment and Land Court, by dint of section 13 of the Environment and Land Court Act, No. 19 of 2011. Section 13 of the Environment and Land Court Act should be read together with Article 162(2) of the Constitution of Kenya, 2010, which envisages the creation of a court to handle matters relating to occupation of land and land use, and also Article 165(5) of the same Constitution, which declares that the High Court has no jurisdiction over disputes that fall under Article 162(2), and, by extension, section 13 of the Environment and Land Court Act. The effect of it is that disputes over boundaries, occupation of land and land use are the exclusive preseve of the Environment and Land Court, meaning that an appeal arising from the decisions in Butere PMCCC No. 6 of 2011 could only lie to the Environment and Land Court, as the High Court has no jurisdiction. Jurisdiction is conferred by the Constitution or by statute, and the court cannot arrogate itself jurisdiction, by what is known as judicial craft. See Samuel Kamau Macharia & another vs. Kenya Commercial Bank Limited & 2 others [2012] eKLR (Mutunga CJ&P, Tunoi, Ojwang, Wanjala & Ndung’u SCJJ).

8. So, the appeal herein was filed in a court bereft of jurisdiction. I cannot determine it, for there is no jurisdiction. The only consideration that I may give is between ordering transfer of the appeal to the court with jurisdiction, and dismissing the appeal altogether for incompetence. Case law appears to favour the striking out or dismissal of appeals filed before a court without jurisdiction, instead of transferring them to the court with jurisdiction. The argument is that the appeal is incompetent, and the court ought not to transfer an incompetent suit to the other court, for that court ought not to entertain a suit that was originally incompetent. In other words, a court should not transfer incompetence, for an incompetent suit is dead from inception, Secondly, if the court does not have jurisdiction to entertain the suit, there would be no jurisdiction to transfer it. SeeEquity Bank Limited vs. Bruce Mutie Mutuku t/a Diani Tour Travel [2016] eKLR (Makhandia, Ouko & M’Inoti JJA) and Phoenix of EA Assurance Company Limited vs. SM Thiga t/a Newspaper Service [2019] eKLR (Karanja, Gatembu & Sichale JJA).

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 10THDAY OF JUNE 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr. RT Aswani, Advocate for the appellant.Zephania William Imbote, the respondent, in person.