[2021] KEHC 6691 (KLR)
The High Court lacks jurisdiction to entertain applications relating to disputes over occupation and ownership of land, as such matters fall within the exclusive jurisdiction of the Environment and Land Court established under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court...
Source-derived case information.
- Citation
- [2021] KEHC 6691 (KLR)
- Parties
- Applicant: Esther Waitherero; Applicant: James Kibui; Respondent: Henry Mugo
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 232 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application transferred for want of jurisdiction.
- Judges
- MM Kasango
- Legal Topics
- Jurisdiction of Courts, Environment and Land Court, Leave to Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Waitherero
Applicant
James Kibui
Applicant
Henry Mugo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Does the High Court have jurisdiction to entertain an application for leave to appeal out of time in a matter concerning occupation and ownership of land?
- 2 Should the application be heard by the Environment and Land Court instead?
Ratio Decidendi
The High Court lacks jurisdiction to entertain applications relating to disputes over occupation and ownership of land, as such matters fall within the exclusive jurisdiction of the Environment and Land Court established under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011. Since the underlying dispute concerns eviction and title to land, the proper forum for the application for leave to appeal out of time is the Environment and Land Court, not the High Court. The application must therefore be transferred to the appropriate court for determination.
Court Disposition
Application transferred for want of jurisdiction.
Orders
- The file is transferred to the Environment and Land Court, Thika for hearing and determination.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
MISC. CIVIL CASE NO. 232 OF 2019
1. ESTHER WAITHERERO
2. JAMES KIBU.......................................................................APPLICANTS
VERSUS
HENRY MUGO.....................................................................RESPONDENT
RULING
1. The applicant, ESTHER WAITHEREROand JAMES KIBUI seek, by the chamber summons dated 18th June, 2019, leave to appeal out of time against the judgment of Senior Principal Magistrate court at Gatundu in Civil Suit No. 43 of 2011. That judgment was delivered on 17th December, 2018.
2. I have taken time to read that judgment and it has become clear to me that I do not have jurisdiction to entertain the present application. Jurisdiction is everything. Without it a court has no power to make one more step. See the case of OWNERS OF THE MOTOR VESSEL “LILIANS” V. CALTEX OIL (KENYA) LTD 1989.
3. From reading the judgment before the Gatundu court it seems the dispute is one of the occupations and ownership of land. By that judgment Henry Mugo was granted orders to evict the applicants from property Kiganjo/Handege/T40.
4. Article 162(2)(b) of the Constitution provides for establishment of Environment and Land Court to deal with issues of environment and use and occupation of title. That court was indeed established whose jurisdiction is set out under Section 13 of the Environment and Land Court Act, 2011. That Section provides:-
(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance withArticle 162(2) (b)of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.
(2) In exercise of its jurisdiction underArticle 162(2) (b)of the Constitution, the Court shall have power to hear and determine disputes:-
(a) Relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(b) Relating to compulsory acquisition of land;
(c) Relating to land administration and management;
(d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
(e) Any other dispute relating to environment and land
5. This Court has no jurisdiction to entertain the application dated 18th June, 2019. The jurisdiction lies with Environment and Land Court.
6. Accordingly, I order this file be transferred to the Environment and Land Court, Thika for hearing and determination.
RULING DATED, SIGNED and DELIVERED at KIAMBU this 27TH day of MAY, 2021.
MARY KASANGO
JUDGE
Coram:
Court Assistant: Ndege
Applicants: Wanjiru holding brief for Mburu Machua
Respondent: No appearance
COURT
RULING delivered virtually.
MARY KASANGO
JUDGE