[2018] KEHC 2289 (KLR)
The High Court determined that the dispute, though presented as a special damages claim, fundamentally concerned the ownership of land and alleged trespass. By operation of Articles 165(5) and 162(2) of the Constitution and Section 13 of the Environment and Land Court Act, such matters fall exclusively within the...
Source-derived case information.
- Citation
- [2018] KEHC 2289 (KLR)
- Parties
- Appellant: John Awuor Abila; Respondent: Joanes Ojwang
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 22 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Jurisdiction
- Outcome
- Jurisdiction declined; matter transferred to the Environment and Land Court.
- Judges
- AC Mrima
- Legal Topics
- Jurisdiction of Courts, Ownership of Land, Trespass to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Awuor Abila
Appellant
Joanes Ojwang
Respondent
Procedural Posture
Civil Appeal / Ruling on Jurisdiction
Legal Issues
- 1 Whether the High Court has jurisdiction to hear and determine the dispute relating to ownership and trespass of land.
- 2 Whether the matter should be heard by the Environment and Land Court.
Ratio Decidendi
The High Court determined that the dispute, though presented as a special damages claim, fundamentally concerned the ownership of land and alleged trespass. By operation of Articles 165(5) and 162(2) of the Constitution and Section 13 of the Environment and Land Court Act, such matters fall exclusively within the jurisdiction of the Environment and Land Court. The court, guided by the Supreme Court's decision in Republic vs. Karisa Chengo & 2 others, held that it lacked jurisdiction and accordingly declined to entertain the appeal, directing that the matter be placed before the Environment and Land Court for further proceedings.
Court Disposition
Jurisdiction declined; matter transferred to the Environment and Land Court.
Orders
- The High Court declines jurisdiction over the matter.
- The appeal is to be placed before the Environment and Land Court for further dealing.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
CIVIL APPEAL NO. 22 OF 2016
JOHN AWUOR ABILA..............APPELLANT
-versus-
JOANES OJWANG..................RESPONDENT
(Being an appeal arising from the ruling and order by Hon. M. M. Wachira, Resident Magistrate in Migori Chief Magistrate’s Civil Case No. 2074 of 2015 delivered on 21/04/2016)
RULING
1. Upon a careful consideration of the record in this appeal, I have noted that this matter, although a special damage claim, is centered on whether the Respondent herein, Joanes Ojwang, was indeed the owner of the parcel of land known as Suna East/Area ‘B’ Kwa/470and whether the Appellant, John Awuor Abila, trespassed into the said land and harvested the trees thereon. The Plaint, the Statement of Joanes Ojwang and the Draft Statement of Defence are clear on that.
2. Having addressed my mind to Articles 165(5) and 162(2) of the Constitution and Section 13 of the Environment and Land Court Act, I find that the dispute is hence in the realm of the Environment and Land Court.
3. Flowing from the Supreme Court of Kenya decision in Republic vs. Karisa Chengo & 2 others Petition No. 5 of 2015 (2017) eKLRI hereby decline jurisdiction over this matter and direct that the same be placed before the Environment and Land Court for further dealing.
Orders accordingly.
DELIVERED, DATED and SIGNED at MIGORI this 23rd day of November, 2018.
A. C. MRIMA
JUDGE
Ruling delivered in open court and in the presence of: -
Mr. Omonde Kisera Counselinstructed by the firm of Messrs. Omonde Kisera & Co. Advocates for the Appellant.
Mr. Jura Counselinstructed by the firm of Messrs. Kerario Marwa & Co. Advocates for the Respondent.
Evelyne Nyauke – Court Assistant