[2023] KEHC 42 (KLR)
The High Court lacks jurisdiction to hear and determine disputes relating to the use, occupation, and title to land following the promulgation of the 2010 Constitution and the enactment of the Environment and Land Court Act. Although the suit was filed before these legal changes, the transitional provisions require...
Source-derived case information.
- Citation
- [2023] KEHC 42 (KLR)
- Parties
- Plaintiff: Blue Sands Hotel Limited; Defendant: Kassim Were Abdallah
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 68 of 2003
- Procedural Posture
- Civil Case / Ruling on Jurisdiction
- Outcome
- Suit transferred to the Environment and Land Court for further directions.
- Judges
- RE Aburili
- Legal Topics
- Jurisdiction of Courts, Transfer of Land Title, Eviction Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Blue Sands Hotel Limited
Plaintiff
Kassim Were Abdallah
Defendant
Procedural Posture
Civil Case / Ruling on Jurisdiction
Legal Issues
- 1 Whether the High Court has jurisdiction to hear and determine disputes relating to land title and occupation after the promulgation of the 2010 Constitution.
- 2 Whether the suit should be transferred to the Environment and Land Court for determination.
Ratio Decidendi
The High Court lacks jurisdiction to hear and determine disputes relating to the use, occupation, and title to land following the promulgation of the 2010 Constitution and the enactment of the Environment and Land Court Act. Although the suit was filed before these legal changes, the transitional provisions require that such matters now be heard by the Environment and Land Court. As the transition period has ended, the suit is not properly before the High Court and must be transferred to the Environment and Land Court for further directions.
Court Disposition
Suit transferred to the Environment and Land Court for further directions.
Orders
- The High Court declines to hear and determine the merits of the suit or any applications thereto.
- The entire file is to be placed before the Environment and Land Court, Kisumu, for further directions.
Full Case Text
Judgment text and source record
22 paragraphs
Blue Sands Hotel Limited v Abdallah (Civil Case 68 of 2003) [2023] KEHC 42 (KLR) (17 January 2023) (Ruling)
Neutral citation: [2023] KEHC 42 (KLR)
Republic of Kenya
In the High Court at Kisumu
Civil Case 68 of 2003
RE Aburili, J
January 17, 2023
Between
Blue Sands Hotel Limited
Plaintiff
and
Kassim Were Abdallah
Defendant
Ruling
1. There is no evidence that parties counsel were served for today as directed on November 17, 2022. However, I have perused the pleadings and especially the proposed amended Plaint and what I find is the Plaintiff’s claim against the Defendant is for transfer and title of land and in the alternative, eviction of the Defendant from land parcel measuring 0. 6 ha of Kisumu/Kogony/4076, 7441 and 7442.
2. That claim in itself is not within the jurisdiction of this court as the jurisdiction is ousted by Articlse 162(2) (b) and 165(5)(b) of the Constitutionas read with Section 13(1) and (7) of the Environment and Land Court Act which provisions are clear, that all disputes relating to the environment and the use of and occupation of land and title to land shall be heard and determined before the Environment and Land Court.
3. Albeit this suit and the prayers sought were filed in 2003 before the promulgation of the 2010 Constitutionand the enactment of enabling legislation to implement Article 162(2)(b) of the Constitution, the transitional and consequential provisions of the Constitution are clear on how existing laws should be construed.
4. Further, as we are no longer in transition, I find this suit not to be properly before this court. It should have, during the transition period, been placed before the Environment and Land Court for hearing and final determination.
5. In the premises, I hereby decline to hear and determine the merits of this suit or any applications thereto and direct that the entire file be placed before the Environment and Land Court, Kisumu, for further directions.
6. Parties counsel to be notified forthwith.
7. I so order.
Dated, signed and Delivered at Kisumu this 17thDay of January, 2023R.E. ABURILIJUDGEPage 1 of 1