[2022] KEHC 17239 (KLR)

Kabugi v Davies & another (Civil Appeal 19 of 2020) [2022] KEHC 17239 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 17239 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Appeal 19 of 2020

SN Mutuku, J

December 1, 2022

Between

Moses Kabugi

Appellant

and

Eric Davies

1st Defendant

Beatrice Soila Swakei

2nd Defendant

Ruling

1. The Respondents herein filed a Reference dated February 5, 2016 at the Business Premises Rent Tribunal against the Applicant claiming, among others, unlawful repossession of two rooms and closure of the entire business with all properties inside with the intention of evicting the Respondents. The business in issue comprised of bar and restaurant and wines and spirits shop located at Plot No 23264 Kajiado/Kaputiei/North. The Tribunal rendered its judgment on March 6, 2020, in which, inter alia, the Reference was allowed with costs.

2. The Applicant was aggrieved by the judgment and preferred this appeal through a Memorandum of Appeal dated April 20, 2020 and filed at the High Court Kajiado on June 10, 2020. Alongside the Memorandum of Appeal, the Applicant filed a Notice of Motion of even date. It is this Notice of Motion that has attracted this Preliminary Objection (PO) under consideration.

Preliminary Objection 3. The Preliminary Objection is dated February 15, 2021. It raises the following points:i.The Appeal is filed out of time without leave of court and also in contravention of the mandatory provisions of section 79G of the Civil Procedure Act. No such leave has been sought to date.ii.The Appeal is filed in a court without Jurisdiction in clear violation of the Law.

Submissions 4. This court directed that the PO be argued first for reasons that it challenges the jurisdiction of this court. It was canvassed by way of oral submissions through virtual proceedings.

5. Mr Wanyonyi, counsel for the Respondents, submitted that the court with jurisdiction to hear and determine appeals from the Business Premises Rent Tribunal is the Environment and Land Court as provided under section 15 of Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (the Act). He relied on Phoenix of East Africa Assurance Company Limited vs S M Thiga T/A Newspaper Service(2019) eKLR where the court cited with approval the case of Joseph Muthee Kamau & Another vs David Mwangi Gichure & Another (2013) eKLR that:“where a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that, the most famous being Kagenyi vs Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction.

6. Secondly, Mr Wanyonyi submitted that the appeal was filed out of time without leave of court; that section 15 of the Landlord and Tenant (shops, Hotels and catering Establishments) Act is clear that the appeal should be filed 30 days after determination; that judgment was delivered on March 6, 2020 and that under section 15 of the Act, the appeal ought to have been filed by April 5, 2020 and not June 10, 2020 as was the case here; that the appeal was filed without leave of the court and therefore the appeal is a non- starter and should be struck out with costs.

7. Counsel relied on Gilbert Mwangi Njuguna vs Judicial Service Commission & another(2020) eKLR, and Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR on the point that “where the law provides for the time within which something ought to be done, if that time lapses, one needs to first seek extension of that time before he can proceed to do that which the law requires.”

8. Mr Achach counsel for the Appellants addressed the issue on Jurisdiction that when and submitted that they could not file the appeal at Kajiado because of a notice from court directing that all appeals be filed at Machakos High Court. He submitted that there was no Judge sitting at the Environment and Land Court in Kajiado and therefore they had issues in filing the memorandum of appeal. Further that he appeared before the Judge at Kajiado High Court (Mwita J) on October 21, 2021 and explained the circumstances that led to filing this appeal in the High Court.

9. He submitted that the Judge ordered that the Court had Jurisdiction. He submitted that it would be a travesty of Justice for the court to dismiss the appeal on account of jurisdiction. That should the court find that it doesn’t have jurisdiction, the matter then be transferred to the Environment and Land Court and not to be dismissed.

10. On the issue of filing the appeal out of time counsel argued that the appeal was filed within time; that judgement was delivered on March 6, 2020 and on March 11, 2020 the country was put on lock down due to the Corvid pandemic; that on March 15, 2020 the then Chief Justice, Hon Mr Justice Maraga issued a moratorium stopping all proceedings both criminal and civil, as a result the activities of the court were scaled down; that, therefore, the days under moratorium should not be counted as it was impossible to file documents and that the PO should be dismissed and the appeal be allowed to proceed.

Analysis and Determination 11. I have considered the issues raised in this matter. The Court of Appeal in Nitin Properties Ltd v Singh Kalsi & another [1995] eKLR also captured the legal principle when it stated as follows:“A Preliminary Objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

12. In Mukisa Biscuit Manufacturing Co Ltd vs West End Distributors ltd (1969) EA 696. ''So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”

13. Further, in Samuel Kamau Macharia & Another vs Kenya Commercial Bank & 2 others, Application No 2 of 2011 [2012] eKLR the court stated:“A court’s jurisdiction flows from the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law.”

14. The jurisdiction of this court, as is the case in respect of any other court in our legal regime, flows from the Constitution and the legislation made thereunder. Article 165 (5) of the Constitution provides that:The High Court shall not have jurisdiction in respect of matters;a.Reserved for the exclusive jurisdiction of the Supreme Court under the Constitution; orb.Falling within the jurisdiction of the courts contemplated in Article 162 (2).

15. The Courts contemplated in Article 162 (2) are courts with the status of the High Court and these are Employment and Labour Relations Court (ELRC) and the Environment and Land Court (ELC). Under Article 162 (3) of the Constitution, it is upon Parliament to determine the jurisdiction and functions of the courts contemplated in Clause 2.

16. Parliament enacted the Environment and Land Court Act, No 19 of 2011. Section 3 of that Act defines the jurisdiction of that court as follows:i.The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 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.ii.In exercise of its jurisdiction under Article 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; ande.any other dispute relating to environment and land.

17. This matter under determination emanates from an appeal arising from the judgement delivered by the Business Premises Rent Tribunal on March 6, 2022. It is clear from the above provisions of the law that appeals from the said tribunal are to be determined by the Environmental and Land Court. Indeed, Section 15 of Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 is specific on this issue.

18. The issue of jurisdiction was discussed in The Owners of the Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd (1989) KLR 1, where the court stated that:“'I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

19. To my mind, the reasons for determining the issue of jurisdiction at the earliest opportunity is to avoid a situation where the court might proceed to determine issues for which it has no jurisdiction to determine, hence the downing of the tools at that early stage of the determination.

20. I need not belabor the point. The provisions of the Constitution and legislation above, as well as authorities cited here, are clear that this matter is in the wrong court. The explanation of the counsel for the Applicant will not help the situation. There is an Environment and Land Court in Machakos and it would have been in order to file this matter in that court.

21. My finding is that this court has no jurisdiction to determine the Notice of Motion filed before it or the intended appeal. This court was urged to dismiss the appeal and the Notice of Motion for being filed in the wrong court. I have considered the matter. In the name of substantive justice, I decline the invitation to dismiss this matter. Instead I will and do hereby order that this matter be transferred to the Environment and Land Court at Kajiado for determination. The Applicant will, however, pay costs to the Respondents for dragging them to the wrong court.

22. Without jurisdiction, this court cannot proceed any further with this matter and I lay down my tools.

23. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 1ST DECEMBER, 2022. S N MUTUKUJUDGE