[2016] KEHC 4206 (KLR)
The High Court determined that it lacked jurisdiction to entertain the appeal, as the subject matter related to land and should have been filed before the Environment and Land Court. The court further held that, in the absence of jurisdiction, it could not transfer the appeal to the proper court. The appropriate...
Source-derived case information.
- Citation
- [2016] KEHC 4206 (KLR)
- Parties
- Appellant: John Mobwe Mwita; Respondent: Peter Murimi Mwita
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 17 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Jurisdiction
- Outcome
- Appeal and Notice of Motion struck out with costs.
- Judges
- AC Mrima
- Legal Topics
- Jurisdiction of Courts, Transfer of Appeals, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mobwe Mwita
Appellant
Peter Murimi Mwita
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Jurisdiction
Legal Issues
- 1 Whether the High Court has jurisdiction to hear the appeal relating to a land matter.
- 2 Whether the High Court can transfer the appeal to the Environment and Land Court.
- 3 Whether the appeal and the accompanying application should be struck out with costs.
Ratio Decidendi
The High Court determined that it lacked jurisdiction to entertain the appeal, as the subject matter related to land and should have been filed before the Environment and Land Court. The court further held that, in the absence of jurisdiction, it could not transfer the appeal to the proper court. The appropriate course was to strike out the appeal and the accompanying application with costs, while noting that the appellant retained the right to file the appeal before the correct forum.
Court Disposition
Appeal and Notice of Motion struck out with costs.
Orders
- The appeal and the Notice of Motion dated 17/04/2016 are struck out with costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
CIVIL APPEAL NO. 17 OF 2016
JOHN MOBWE MWITA ....................................................APPELLANT
VERSUS
PETER MURIMI MWITA............................................... RESPONDENT
(Being an appeal from the judgment and decree by Hon. Nyagah Senior Resident Magistrate in Migori Principal Magistrate's Civil Case No. 647 of2015 delivered on 07/04/2016).
RULING
1. The Appellant filed his Memorandum of Appeal together with a Notice of Motion seeking a stay of execution of the judgment delivered by the lower court.
2. When the application eventually came up for hearing, the Respondent's Counsel raised an objection to the jurisdiction of this Court. The Appellant's Counsel, rightly so, conceded to the issue of jurisdiction and prayed that the appeal be instead transferred to the Environment and Land Court for further dealing. The Respondent's Counsel opposed the transfer on the ground that since the appeal was filed in a wrong Court then this Court even lacks the jurisdiction to transfer the appeal. He prayed that the appeal together with the application be struck out with costs. That is the brief background upon which this ruling is premised on.
3. As correctly pointed out and readily agreed, the appeal was to be filed before the Environment and Land Court. Since jurisdiction is everything and without it a Court of law cannot even make a single forward move, it therefore follows that the matter halts there. (See the Court of Appeal cases of The Owners of Motor Vessel “LILIAN “S” -vs- Caltex Oil Kenya Ltd (1989) 1 KLR1 and Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko & 2 Others (2013) eKLR among others).
4. As to whether the appeal should be struck out with costs, I find that to be the best way forward in this matter. I say so because this is an appeal on a land matter and the matter was fully heard and determined before the lower court. I would have taken a different position if the matter was not an appeal and if in that matter there were cross-cutting issues between this Court and the Environment and Land Court. In arriving at that finding I am alive to the fact that the appellant reserves his right to prefer the appeal before the proper Court.
5. Consequently the appeal and the Notice of Motion dated 17/04/2016 be and are hereby struck out with costs.
DATED, SIGNED and DELIVERED at MIGORI this 20th day of July 2016.
A. C. MRIMA
JUDGE