[2007] KEHC 765 (KLR)
The court held that the dispute between the parties is a clear case of trespass to land, which falls squarely within the jurisdiction of the Land Disputes Tribunal as provided under Section 3 of the Land Disputes Tribunals Act. Since the plaintiff filed the suit in the High Court instead of the Tribunal, the court...
Source-derived case information.
- Citation
- [2007] KEHC 765 (KLR)
- Parties
- Plaintiff: Christopher Kagemea Gichuhi; Defendant: Livingstone K. Gitome
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 412 of 2002
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- Plaintiff's suit struck out for want of jurisdiction; costs awarded to defendant.
- Judges
- JM Khamoni
- Legal Topics
- Trespass to Land, Jurisdiction of Land Disputes Tribunal, Striking Out Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Christopher Kagemea Gichuhi
Plaintiff
Livingstone K. Gitome
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to hear a suit based on trespass to land when the Land Disputes Tribunal Act applies.
- 2 Whether the plaintiff's suit should be struck out for failure to file in the appropriate forum.
Ratio Decidendi
The court held that the dispute between the parties is a clear case of trespass to land, which falls squarely within the jurisdiction of the Land Disputes Tribunal as provided under Section 3 of the Land Disputes Tribunals Act. Since the plaintiff filed the suit in the High Court instead of the Tribunal, the court lacks jurisdiction to entertain the matter. The preliminary objection raised by the defendant was therefore upheld, and the suit was struck out with costs to the defendant.
Court Disposition
Plaintiff's suit struck out for want of jurisdiction; costs awarded to defendant.
Orders
- Plaintiff's suit is struck out.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI LAW COURTS)
Civil Suit 412 of 2002
CHRISTOPHER KAGEMEA GICHUHI ………..……….. PLAINTIFF
Versus
LIVINGSTONE K. GITOME ………………………….. DEFENDANT
RULING
At the beginning of the hearing of this suit, counsel for the Defendant, Mr. Kanyi raised an objection saying that since the Plaintiff in this plaint has based his case on trespass, the plaintiff- should have filed this case in a Land Disputes Tribunal in accordance with the Land Disputes Tribunals Act Section 3. Having come to this court instead of going to the Tribunal therefore, this is incompetent, as this Court has no jurisdiction to grant the prayers sought especially since there is no prayer for a declaration of trespass. Mr. Nabutete, counsel for the Plaintiff, did not agree.
Briefly, the dispute between the two parties was taken to the Land Registrar at Kajiado under Section 21 of the Registered Land Act and he resolved it resolved on 27th July, 1999. It involves land parcel No. NGONG/NGONG/5862 and the Land Registrar decided the dispute between the parties against the Plaintiff now in this suit. The Plaintiff filed H.C. Civil appeal No.322 of 1999 in this High Court. But in the end that appeal was withdrawn on the ground that Mr. Nabutete who was handling the appeal for the Appellant wished to have further instructions from the Appellant. Following that withdrawal, this suit was filed.
Both sides agree that the case is a trespass case. At the end of their respective submissions, they were agreed that the case was not rejudicata. In the circumstances I do not see the basis of the disagreement whether or not the Plaintiff should have gone to file the case in the Land Dispute Tribunal. Section 3 of the Land Dispute Tribunal Act is clear and from the Plaintiff’s claim in the plaint in this suit, this is a clear case of trespass under Section 3 of that Act.
The above being the position, Mr. Kanyi’s preliminary objection is upheld and the Plaintiff’s suit herein struck out with costs to the Defendant.
Dated and delivered at Nairobi this 19th day of March, 2007.
J.M. KHAMONI
JUDGE