[2010] KEHC 2436 (KLR)
The court found that although disputes concerning trespass and boundary of land can be heard by the Land Registrar or the Land Disputes Tribunal, the High Court retains unlimited original jurisdiction under Section 60(1) of the Constitution. The mere fact that a matter could be heard by a subordinate court or...
Source-derived case information.
- Citation
- [2010] KEHC 2436 (KLR)
- Parties
- Plaintiff: Charles Gichango Wanjohi; Defendant: Andrew Kariuki Mutahi; Defendant: Francis Kione Kihuta
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 60 of 2005
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- Preliminary objection dismissed.
- Legal Topics
- Trespass to Land, Jurisdiction, Boundary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Gichango Wanjohi
Plaintiff
Andrew Kariuki Mutahi
Defendant
Francis Kione Kihuta
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to hear and determine a dispute relating to trespass and boundary of land.
- 2 Whether the suit should be struck out for want of jurisdiction in light of the Land Disputes Tribunal Act and Registered Land Act provisions.
Ratio Decidendi
The court found that although disputes concerning trespass and boundary of land can be heard by the Land Registrar or the Land Disputes Tribunal, the High Court retains unlimited original jurisdiction under Section 60(1) of the Constitution. The mere fact that a matter could be heard by a subordinate court or tribunal does not render proceedings before the High Court fatal. The court has the discretion to hear the dispute or transfer it to the appropriate forum. Consequently, the application to strike out the suit for want of jurisdiction was dismissed, and the parties were given the option to apply for transfer if necessary.
Court Disposition
Preliminary objection dismissed.
Orders
- The preliminary objection is dismissed.
- Either party may apply to have the suit heard in the relevant forum if necessary.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI Civil Case 60 of 2005
CHARLES GICHANGO WANJOHI……………………………………PLAINTIFF
VERSUS
ANDREW KARIUKI………………………………………..……..1st DEFENDANT
FRANCIS KIONE KIHUTA………….…………….….…………2ND DEFENDANT
RULING
In the Plaint dated 4th August 2005, CHARLES GICHANGO WANJOHI, the Plaintiff herein, sued ANDREW KARIUKI MUTAHIand FRANCIS KIONE KIHUTA, the 1st and 2nd Defendants herein, in which he prayed forinteralia:an order of permanent injunction to restrain the Defendants, their agents and or servants from trespassing upon the Plaintiff’s parcel No. GITHI/MUTHAMBI/988. The Defendants filed a defence to deny the Plaintiff’s claim.When this suit came up for hearing, the Defendants sought to argue the preliminary point raised in paragraph 3 of the defence.It is argued that the dispute relates to trespass to land hence this Court lacks jurisdiction to hear and determine the same.
The preliminary objection is the subject matter of this ruling.It is the submission of Mr. Kiminda, learned advocate for the Defendants, that the dispute which relates to trespass to land can only be determined by the Land Disputes Tribunal underSection 3 (1)of the Land Disputes Tribunal Act No. 18 of 1990. Mr. Kiminda urged this court to strike out the suit.Miss Keli on her part urged this Court to dismiss the Preliminary Objection because the issue in dispute had been determined by the Chief Land Registrar in 1991.
I have considered the rival submissions.There is no doubt that the issue in dispute relates to both trespass and boundary dispute.It is also not denied that such disputes can competently be heard and determined by the Land Registrar underSection 21 (4)of the Registered Land Act or by the Land Disputes Tribunal underSection 3 (1)of the Land Disputes Tribunals Act No. 18 of 1990. It is also not in dispute that the High Court has unlimited original jurisdiction to hear and determine any civil and criminal matters underSection 60 (1)of the Constitution.Therefore, the fact that a matter which was supposed to be heard by the subordinate court or a tribunal has been filed before this court is not fatal.The court retains a wide power to either hear the dispute or withdraw it and transfer to the relevant court or tribunal.The application for the striking out of the suit therefore cannot succeed.A fair order is to dismiss the Preliminary Objection and give either party the option to apply if any to have the suit heard in the relevant forum.That is the order of the court.Costs shall abide the outcome of the suit.
Dated and delivered at Nyeri this 21st day of May 2010.
J. K. SERGON
JUDGE
In open court in the presence of Mr. Kimunya holding brief Miss Keli for the Plaintiff and
Kiminda for the Defendants.