[2021] KEHC 8560 (KLR)
The High Court found that it lacked jurisdiction to entertain the application because the dispute concerned use, occupation, and title to land, which falls within the exclusive jurisdiction of the Environment and Land Court as provided by the Constitution. Furthermore, the court held that the application was barred...
Source-derived case information.
- Citation
- [2021] KEHC 8560 (KLR)
- Parties
- Applicant: Joseph Mwirigi M’Ithir; Respondent: Solomon Gichuru Maugo
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 111 of 2019
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Suit for Want of Jurisdiction and Res Judicata
- Outcome
- application struck out with costs to the respondent
- Judges
- CA Otieno
- Legal Topics
- Jurisdiction of Courts, Adverse Possession, Res Judicata, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mwirigi M’Ithir
Applicant
Solomon Gichuru Maugo
Respondent
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Suit for Want of Jurisdiction and Res Judicata
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain a dispute concerning use, occupation, and title to land.
- 2 Whether the application is barred by the doctrine of res judicata under section 7 of the Civil Procedure Act.
Ratio Decidendi
The High Court found that it lacked jurisdiction to entertain the application because the dispute concerned use, occupation, and title to land, which falls within the exclusive jurisdiction of the Environment and Land Court as provided by the Constitution. Furthermore, the court held that the application was barred by the doctrine of res judicata under section 7 of the Civil Procedure Act, since a similar application had already been determined by the ELC. Consequently, the only available course was to strike out the application with costs to the respondent.
Court Disposition
application struck out with costs to the respondent
Orders
- The application dated 24.9.2019 is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CIVIL SUIT NO. 111 OF 2019
JOSEPH MWIRIGI M’ITHIR..............APPLICANT
VERSUS
SOLOMON GICHURU MAUGO.....RESPONDENT
RULING
1. This matter was listed for the purposes of mention. The purpose of the mention was however not disclosed. When called out Mr Wanjohi Advocate asked the court to dismiss it on the basis that it was filed before a court without jurisdiction and that a similar application over the same decision had been lodged and pursued before the ELC, Meru and has since been determined. The court sought to be urnished with the determination by the Judge in Meru ELC Misc App No. 68 of 2019 to help discern the relationship between the two applications.
2. I have now been availed the ruling by Lucy Mbugua J. In Meru ELC Misc. Application No. 68 of 2019 dated 14. 12. 2020 by Mr Wanjohi. From the ruling, I discern that the application and the resultant ruling concerned the decision of the trial court, in Civil Suit No. 77 of 2008, said to have been delivered on 24. 1.2018, by Hon. H. N. Ndungu, CM. That is the same decision the applicant here seeks to challenge by an appeal to be filed out of time.
3. That decision is evidently from a suit in which the respondent sought to have his adverse possessory rights decreed by the court. The court acceded to the plea and entered judgment against the applicant herein.
4. From the record of the application filed and the ruling by the ELC court, I have no hesitation in finding that the dispute before the lower court was a claim over use and occupation of land as well as title to land. Such is decreed by the Constitution, under Article 162(2)b as read with 165(2)b to be in the domain and exclusive jurisdiction of the Environment and Land Court and not this Court.
5. Accordingly, the application was lodged in a court without jurisdiction and the only option open to court is to have it struck out. I do so strike it out with costs.
6. In addition, it is apparent that the current application was filed on 9. 10. 2019 some seven or so days before the ELC application was filed. Despite having been filed earlier it would appear there was more vigour to prosecute the ELC matter while this was kept pending. The consequence is that when the ELC matter was dismissed on the merits the current application was caught up by section 7 of the Civil Procedure Act and this court is barred from entertaining it even if the court had jurisdiction over the matter. Even on account of the principle of res-judicata. The application still invites only one inevitable order of striking out.
7. I order that the application dated 24. 9.2019 be struck out with costs to the respondent.
DATED SIGNED AND DELIVERED THIS 3RD DAY OF FEBRUARY, 2021
PATRICK. J.O OTIENO
JUDGE