[2022] KEHC 1523 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. E270 OF 2020

KAYSER INVESTMENT LIMITED................................................1ST APPELLANT

MR. ROBIN/OWNER SHOP 32 & 33 DRAGON

VILLAGE ARGWINGS KODHEK ROAD...................................2ND APPELLANT

VERSUS

WEST AFRICAN FOOD STUFF COMPANY LIMITED...............RESPONDENT

RULING

1. Before this court for determination is the notice of preliminary objection dated 15th April, 2021 brought by the respondent and raising the following grounds of objection:

i. THAT the appeal as filed is a non-starter, frivolous, scandalous, vexatious and fatally defective ab initio since the firm of M/S AKO Advocates LLP Advocates on record for the 2nd appellant has no locus standi/legal capacity to file the appeal on behalf of the 2nd appellant as he was not the advocate for the 2nd appellant in the primary suit.

ii. THAT no proper appeal exists in this matter since the appeal infringes the provisions of Section 13 of the Environment and Lands Court Act, Laws of Kenya.

iii. THAT no proper appeal exists in this matter since the appeal infringes the provisions of Article 162(2)(b) of the Constitution of Kenya, 2010.

iv. THAT the entire appeal is misconceived ab initio as the 1st appellant already complied with the primary suit’s orders issued on 18th September, 2020 and paid both thrown away costs and filed the statement of defence and the appeal has been overtaken by events and the 1st appellant is estopped by the doctrine of estoppel from filing the appeal.

v. THAT the entire appeal is frivolous, vexatious, scandalous and an abuse of the court process.

vi. THAT the appeal ought to be dismissed with costs to the respondent.

2. The parties were directed to dispense with the preliminary objection through the filing and exchanging of written submissions. As at the time of writing this ruling, only the submissions by the respondent had been availed.

3. I have considered the grounds laid out in the notice of preliminary objection and the written submissions and cited authorities on record.

4. It is clear that the preliminary objection raises three (3) substantive grounds.

5. The first ground relates to the locus standi of the firm of M/S AKO Advocates LLP Advocates to come on record for the 2nd appellant.

6. The respondent submits that the aforementioned firm of advocates only acted for the 1st appellant in the suit but did not represent the 2nd appellant as the latter was being represented by a different firm of advocates.

7. The respondent further submits that the ruling being appealed against was made in respect to the 1st appellant and not the 2nd appellant.

8. Upon my perusal of the record, I observed that the appellants herein were represented by different firms of advocates in the primary suit; while the firm of M/S AKO Advocates LLP Advocates was at all material times on record for the 1st appellant, the firm of M/S Meyo & Nyapara Co. Advocates was on record for the 2nd appellant at all material times.

9. Furthermore, the record shows that while interlocutory judgment was entered against both appellants herein, the application which gave rise to the ruling that is the subject of the present appeal, was filed solely by the 1st appellant. There is nothing to indicate that the 2nd appellant sought to have the interlocutory judgment entered against him set aside.

10. Upon my study of the record, I note that there are inconsistencies regarding whether the firm of M/S AKO Advocates LLP Advocates is acting for the two (2) appellants or simply the 1st appellant, since the memorandum of appeal indicates that the appeal has been brought by the 1st appellant.

11. In view of the foregoing circumstances, I am hesitant to make any order relating to the legal representation of the 2nd appellant at this stage. Ground (i) of the preliminary objection cannot therefore stand.

12. The second issue for determination is on competency of the appeal by virtue of Section 13 of the Environment and Lands Court Act, 2011 and Article162(2)(b) of the Constitution of Kenya, 2010, both touching on jurisdiction of the courts.

13. The respondent contends that since the subject matter of the primary suit is a lease pertaining to the property known as LR 1/229 along Agrwings Kodhek Road, the court vested with the jurisdiction to entertain the appeal is the Environment and Land Court (ELC) and not the High Court.

14. The respondent cites among others, the case of Wilfred Ontube

Makori v Kenya Electricity Transmission Co. Ltd & another [2020] eKLRin which the court rendered itself thus:

“It’s almost a decade since the Environment and Land Court Act No.19 of 2011 came into force and I am of the view that the citizenry is now well-acquainted with jurisdiction of the High Court, the Industrial Court or the Environment & Land Court as envisioned by the Constitution of Kenya 2010.

In the circumstance, I find that this court lacks the jurisdiction to entertain the appeal and consequently the appeal is struck out with costs to the respondent.”

15. Section 13 of the ELC Act provides thus:

“(1) 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 written law relating to environment and land.

(2) In exercise of its jurisdiction under Article 162 (2) (b) of the Constitution, the Court shall have power to hear and determine disputes relating to environment and land, including disputes?

(a) relating to environmental planning and protection, trade, 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; and

(e) any other dispute relating to environment and land…”

16. Article 162(2)(b) of the Constitution, 2010 reads as follows:

“(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to: -

a….

b. The environment and the use and occupation of, and title to, land.”

17. Upon my perusal of the record, particularly the pleadings filed in the primary suit, it is apparent that the cause of action relates to alleged breach of contract and nuisance, both of which are founded on torts and for which the respondent is seeking reliefs in the nature of damages and refund on monies paid. Consequently and contrary to the averments being made by the respondent, the High Court has jurisdiction to entertain appeals relating to such actions. Grounds (ii) and (iii) of the preliminary objection hold no water.

18. I am left with the third issue concerning compliance by the 1st appellant with the orders made in the impugned ruling.

19. On its part, the respondent argues that the 1st appellant did not disclose to this court that it had complied with the conditions for setting aside the interlocutory judgment by the lower court, namely the filing of its statement of defence and counterclaim, and the payment of thrown away costs in the sum of Kshs.15,000/.

20. The respondent is therefore of the view that the 1st appellant is estopped from again seeking to have the interlocutory judgment set aside unconditionally.

21. From my study of the record, I note that the respondent did not bring any credible evidence to support its argument that the 1st appellant had complied with the conditions for setting aside the interlocutory judgment so as to warrant the dismissal of the appeal for being overtaken by events.

22. In the absence thereof, I have no basis on which to make a finding that the appeal is incompetent on those grounds.

23. Consequently, the respondent’s notice of preliminary objection dated 15th April, 2021 is hereby dismissed with costs to the appellant.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022.

………….…………….

J. K. SERGON

JUDGE

IN THE PRESENCE OF:

……………………………. FOR THE 1ST APPELLANT

……………………………. FOR THE 2ND APPELLANT

……………………….....……. FOR THE RESPONDENT