[2019] KEHC 10229 (KLR)
The court found that the substratum of the dispute in the lower court revolved around land, and therefore, the appeal properly lies within the jurisdiction of the Environment and Land Court (ELC). Although the immediate contest concerned costs, the underlying matter was land-related, and the appellant had previously...
Source-derived case information.
- Citation
- [2019] KEHC 10229 (KLR)
- Parties
- Appellant: John Gachunga Njoroge; Respondent: Joseph Njoroge Mwangi
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 53 of 2018
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay Pending Appeal; Preliminary Objection on Jurisdiction
- Outcome
- Preliminary objection upheld; appeal transferred to the Environment and Land Court at Murang’a; costs in the appeal.
- Judges
- K Kimondo
- Legal Topics
- Jurisdiction of Courts, Transfer of Proceedings, Costs Awards, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Gachunga Njoroge
Appellant
Joseph Njoroge Mwangi
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay Pending Appeal; Preliminary Objection on Jurisdiction
Legal Issues
- 1 Whether the High Court has jurisdiction to hear the appeal or if it lies with the Environment and Land Court.
- 2 Whether the appeal should be struck out or transferred due to lack of jurisdiction.
- 3 Whether a stay of execution should be granted pending appeal.
Ratio Decidendi
The court found that the substratum of the dispute in the lower court revolved around land, and therefore, the appeal properly lies within the jurisdiction of the Environment and Land Court (ELC). Although the immediate contest concerned costs, the underlying matter was land-related, and the appellant had previously lodged an appeal at the ELC. The court upheld the respondent's preliminary objection on jurisdiction but, in the interests of justice, declined to strike out the appeal. Instead, the court ordered the transfer of the appeal to the ELC at Murang’a, holding that only the ELC has the requisite jurisdiction to hear and determine the matter. Costs were ordered to be in the appeal.
Court Disposition
Preliminary objection upheld; appeal transferred to the Environment and Land Court at Murang’a; costs in the appeal.
Orders
- This appeal is hereby transferred to the Environment and Land Court at Murang’a.
- Costs shall be in the appeal.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CIVIL APPEAL NO. 53 OF 2018
JOHN GACHUNGA NJOROGE……………………….….APPELLANT
VERSUS
JOSEPH NJOROGE MWANGI……………..…………...RESPONDENT
RULING
1. The appellant prays for stayof the order of the lower court pending the hearing and determination of this appeal.
2. The impugned order was made on 27th September 2018 in Kigumo Resident Magistrates Court Civil Case 24 of 2010. The subordinate court first issued a warrant of arrest against the appellant on 27th July 2018. The appellant then filed a notice of motion to set aside the order; and, to respond to the initial Notice to Show Cause.
3. The learned trial magistrate declined to stay or set aside the orders. Instead, she ordered the appellant to pay the disputed costs at the peril of committal to civil jail.
4. The appellant was aggrieved and lodged this interlocutory appeal. Pending the hearing of the appeal, he filed a notice of motion dated 11th October 2018 to stay the impugned order.
5. The appellant avers that he was not heard; and, that he has a good defence to the Notice to Show Cause. Ultimately, he contends that the appeal is arguable; and, that unless stay is granted, he will suffer great prejudice.
6. The motion is contested. There is the replying affidavit sworn by the respondent on 6th December 2018. The respondent has also filed a preliminary objection dated 19th December 2018. The gist is that the appeal falls within the mandate of the Environment and Land Court.
7. On 20th December 2018 learned counsel for all parties addressed the court on the preliminary objection.
8. Jurisdiction is everything. Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1. The substratum of the dispute in the lower court revolved around land. I am fortified because the appellant lodged an appeal at the ELC Court at Nyeri Appeal No. 5 of 2015.
9. True, the appellant has since paid the decretal sum. The contest now revolves around the issue of costs. But obviously, the present interlocutory appeal should also have been lodged in the Environment and Land Court. See Republic v Karisa Chengo & 2 others,Supreme Court of Kenya, Petition No. 5 of 2015 [2017] eKLR.
10. I uphold the preliminary objection. In the interests of justice, I will not strike out the appeal. Instead, this appeal is hereby transferred to the Environment and Land Court at Murang’a.
11. Costs shall be in the appeal.
It is so ordered.
DATED, SIGNED and DELIVERED at MURANG’A this 14th day of February 2019
KANYI KIMONDO
JUDGE
Ruling read in open court in the presence of:
No appearance by counsel for the appellants.
Mr. Joseph Njoroge Mwangi, the respondent (in person).
Ms. Dorcas and Ms. Elizabeth, Court Clerks.