[2015] KEHC 1339 (KLR)
The High Court lacks jurisdiction to hear and determine disputes relating to the environment, use and occupation of, and title to land, as such jurisdiction is vested exclusively in the Environment and Land Court by virtue of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act....
Source-derived case information.
- Citation
- [2015] KEHC 1339 (KLR)
- Parties
- Plaintiff: C. Dorman Ltd; Defendant: Kenya Railways Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 109 of 2013
- Procedural Posture
- Civil Case / Ruling on Jurisdiction
- Outcome
- The High Court declines jurisdiction and directs that the file be placed before the Environment and Land Court for further directions.
- Judges
- RE Aburili
- Legal Topics
- Jurisdiction of Courts, Environment and Land Court, Injunctive Relief, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
C. Dorman Ltd
Plaintiff
Kenya Railways Corporation
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 ownership and occupation after the establishment of the Environment and Land Court.
- 2 Whether the suit should be struck out or transferred to the appropriate court.
Ratio Decidendi
The High Court lacks jurisdiction to hear and determine disputes relating to the environment, use and occupation of, and title to land, as such jurisdiction is vested exclusively in the Environment and Land Court by virtue of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. Although the suit was filed during a transitional period when the Environment and Land Court was being established, the proper course is not to strike out the suit but to transfer it to the Environment and Land Court for further directions and disposal. The High Court's jurisdiction is expressly ousted by Article 165(5)(b) of the Constitution for such matters.
Court Disposition
The High Court declines jurisdiction and directs that the file be placed before the Environment and Land Court for further directions.
Orders
- The file is to be placed before the Environment and Land Court for further directions as to its hearing and disposal.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO.109 OF 2013
C. DORMAN LTD ……………….……………………....................................……..PLAINTIFF
VERSUS
KENYA RAILWAYS CORPORATION ……….….........................................……DEFENDANT
RULING
The plaintiff C. Dorman ltd instituted this suit on 4th April 2013 against the defendant Kenya Railways Corporation. The plaintiff’s claim against the defendant is for
A permanent injunction restraining the defendant from evicting the plaintiff from its property; attaching the plaintiffs property, forcefully obtaining the plaintiff’s assets with the intention to sell the same at a public auction or in any other way alienating or destroying the plaintiffs property without an order from the court.
The suit land is LR 10491-LR 209/4248.
A declaration that the plaintiff does not owe the defendant any sums of fees in respect of the suit property.
Costs of the suit.
Any other relief that the court may deem fir and just to grant.
From the prayer No (a) above, it is apparent that the claim by the plaintiff against the defendant is over land.
That being the case, Article 162(2)(b) of the Constitution contemplates the establishment of a specialized court with the same status as the High Court to hear and determine disputes relating to Environment, the use and occupation of , and title to land.
Clause 3 thereof mandates, Parliament to determine the jurisdiction and functions of the said court. In 2011, Parliament enacted the Environment and Land Court Act 2011, establishing under Section 4 thereof the Environment and Land Court. The court, under Section 13(1) and (2) of the Act is vested with jurisdiction as contemplated under Article 162(2) (b) of the Constitution.
Further, among the orders that the court can grant on the exercise of its jurisdiction under the Act are
Interim or permanent preservation orders including injunctions;
Prerogative orders.
Award of damages
Compensation
Specific performance.
Restitution.
Declaration
Costs.
In addition, Article 165(5) (b) of the Constitution expressly ousts the jurisdiction of the High Court form hearing and determining disputes relating environment and land which disputes fall within the jurisdiction of the Environment and Land Court.
It therefore follows that this court has no jurisdiction to hear and determine the dispute herein which relates to ownership/occupation of land.
This court nonetheless appreciates that the dispute was instituted in court in the transitional period albeit after the effective date, and just when the Environment and Land Court was being set up and beginning its work in early 2013.
That being the case, I would not strike out this suit. I would therefore direct that the file be placed before the Environment and Land Court for further directions as to its hearing and disposal.
Orders accordingly.
R.E. ABURILI
JUDGE
12/10/2015