[2017] KEHC 9514 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILINMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 408 OF 2016

In the matter of Articles 22 (1), 23 (1) & 23 (3) of the Constitution of the Republic of Kenya

and

In the matter of alleged contravention and violation of Rights and Fundamental Freedoms guaranteed under Articles 19, 20, 21 (1), 24, 27 (1) & (2), 40, 47, 50 (1), 60 (1) (b) & 64 of the constitution of the Republic of Kenya

BETWEEN

Keza Limited.....................................................................................................Petitioner

Versus

The Cabinet Secretary, Ministry of Interior and

Coordination of National Government..............................................1stRespondent

Hon. Simba Arati, Member of Parliament, Dagoretti North.........2ndRespondent

The Honourable Attorney General.....................................................3rdRespondent

JUDGMENT

Introduction

1. This Petition discloses a fundamental question of jurisdiction which ought to have been addressed at an early stage. Regrettably, even though this Petition was filed on 6th October 2016, the issue of jurisdiction was raised for the first time by the first and third Respondents in their final submissions filed on 2nd November 2017.

2. It is clear to me that in general a Court is bound to entertain proceedings that fall within its jurisdiction. Put differently, a court has no inherent jurisdiction to decline to entertain a matter within its jurisdiction.

3. Jurisdiction is the very basis on which any Tribunal or court tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to the Court; afortiori the Court can suo motu raise it.

4. By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited.

5. A limitation may be either as to the kind and nature of the actions and maters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the fact exist.

6. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.[1]A Court’s jurisdiction flows from either the Constitution, legislation or both or by principles laid out in judicial precedent.[2]

7. Thelocus classicus decision in Kenya on jurisdiction is the celebrated case of Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd[3] where the late Justice Nyarangi of the Court of Appeal held as follows:-

“.... 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.”

The Petitioners case

8. A close examination of the crux of the Petitioner's case reveals that the dispute before the court relates to interference with its ownership rights, title, use, occupation, denial of access and invasion or alleged trespass into its land and construction on the land and or compulsory acquisition of its land.

9. The Petitioner states that it is the registered proprietor of Land Reference No. 209/12085, which is private property and that it holds a title to the said land which is indefeasible.

10. The Petitioner further avers that the second Respondent forcefully led members of the Public who invaded the property, dispossessed the Petitioner and constructed structures thereon and/or are in the process of constructing structures which will serve as government offices. Further, the Petitioner has been denied access to the land.

11. The Petitioner cites violation of its Rights under Articles 47, 50, 40 60 (1) (b) of the Constitution, Fair Administrative Action and unlawful deprivation of its property. It seeksinter aliathe following orders:- (a) a declaration that it is the Registered proprietor of the said property; (b) that its title can only be upset by due process; (c) occupying the land violates its rights; (d) a mandatory injunction directing the Respondents to remove the said structures; (e) Compensation for compulsory acquisition; (d) damages.

12. The Petitioners' counsels submissions dwelt on violation of the Petitioner's rights to the property. The first and Second Respondents' counsel raised the question of jurisdiction. He argued that this case ought to have been filed in the Environment and Land Court.

Determination

13. Its trite that a Court of law can only exercise jurisdiction as conferred by the Constitution or other written laws.[4] Article 165(1) of the Constitution vests vast powers in the High Court including the power to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatenedand the jurisdiction ‘to hear any question respecting the interpretation of the Constitution. Article 23 (1) provides that the High Court has jurisdiction, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

14. The limitation of this courts vast powers conferred under article 165is to be found in sub-article (5) which states in mandatory terms 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; or (b) falling within the jurisdiction of the courts contemplated in Article 162 (2) (a) & (b).

15. Clearly, this court has no jurisdiction to determine matters falling under Article 165 (2) (b). But what are these matters? In my view, the answer can be found in the provisions of Section 13 of the Environment and Court Act,[5]an Act of Parliament enacted to give effect to Article 162(2)(b) of the Constitution; to establish a superior court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land, and to make provision for its jurisdiction functions and powers, and for connected purposes.

16. Section 13 of the Environment and Land Court Act[6] provides that:-

(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 law applicable in Kenya 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—

(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; and

(e) any other dispute relating to environment and land.

(3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.

(4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.

(7) In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including—

(a) interim or permanent preservation orders including injunctions;

(b) prerogative orders;

(c) award of damages;

(d) compensation;

(e) specific performance;

(g) restitution;

(h) declaration; or

(i) costs

17. The jurisdiction of the Environment and Land Court is limited to the disputes contemplated under Article 162(2)(b) of the Constitution and Section 13 of the Act. In this regard, my view is that the intention in the Constitution is that if an issue arises touching on land in respect of its use, possession, control, title, compulsory acquisition or any other dispute touching on land, then this Court has no jurisdiction.

18. The other closely related issue is of the jurisdiction of the Environment and Land Court to deal with issues relating to constitutional interpretation and enforcement of constitutional remedies especially in respect to matters which fall within the ambit of the Environment and Land Court.

19. A similar issue arose in the case of United States International University (USIU) vs. Attorney General[7] where the court dealt with it at a very great length. Although the said case related to labour issues one of the issues in contention was whether or not the Employment and Labour Relations Court as created under Article 162 (2) of the Constitution has the jurisdiction to interpret the Constitution and to grant the remedies provided under Article 23 of the Constitution which remedies are clearly stated to be a sole preserve of the High Court. The court expressed himself on the said issues as follows:-

"45. In light of what I have stated, I find and hold that the Industrial Court as constituted under the Industrial Court Act, 2011 as court with the status of the High Court is competent to interpret the Constitution and enforce matters relating to breach of fundamental rights and freedoms in matters arising from disputes falling within the provisions of Section 12 of the Industrial Court Act, 2011. ”(emphasis added).

20. It is instructive to note that the Court of Appeal has also had an occasion to address itself on the very issue in the case of Daniel N. Mugendi vs. Kenyatta University & 3 others[8] where the in allowing an appeal and setting aside an order dismissing a suit on the finding that the Industrial Court was not possessed of jurisdiction to interpret the Constitution and to grant the remedies provided under Article 23 of the Constitution settled the issue in toto in respect to such matters within the jurisdiction of both the Employment and Labour Relations Court as well as those before the Environment and Land Court. The Court of Appeal expressed itself in the following words:-

"In the same token we venture to put forth the position that as we have concluded that the Industrial Court can determine industrial and labour relations matters alongside claims of fundamental rights ancillary and incident to those matters, the same should go for the Environment & Land Court, when dealing with disputes involving environment and land with any claims of breaches of fundamental rights associated with the two subjects.”(emphasis added).

21. A High court may not determine matters falling squarely under the jurisdiction of the ‘status courts’ namely the Employment and Labour Relations Court (read Industrial Court) and the Land and Environment Court. These are the courts established under Article 162(2) and whose jurisdiction is spelt out in the respective constitutive statutes.

22. But even with that clear-cut jurisdictional demarcation on paper, sometimes matters camouflaged in what may on the surface appear to be a serious constitutional issue or other matters falling in other High Court divisions may, on a closer scrutiny reveal otherwise- that the germane of the application is actually a labour dispute or land issue falling squarely in the forbidden sphere of the specialized courts! Such is the nature of this case. It falls squarely in the forbidden sphere of the specialized courts.

23. While the Constitution guarantees right to access courts, the same Constitution neither operates in a vacuum nor does it automatically oust other constitutional and statutory provisions brought to life by the legislative arm of government such as the Environment and Land Court Act.

24. As such, where the constitution and legislation expressly confers jurisdiction to a court as in the present case invoking this courts vast jurisdiction will be inappropriate. The jurisdictional boundaries of the High Court are clearly spelt out under the constitution.

25. I find that this case relates to a question relating to title to land, use, illegal occupation, trespass, compulsory acquisition, and or interference with the petitioners rights to peaceful use and enjoyment of land all of which fall outside the jurisdiction of this court.

26. The constitutionality or otherwise of the petitioners complaints falls within the jurisdiction of the Environment and Land Court which in my view has jurisdiction to determine the issues raised as clearly stipulated in the provisions of the law cited above.

27. Consequently, I find and hold that this court has no jurisdiction to hear and determine this matter. I hereby dismiss this Petition with leave to the Petitioner to file his case in the right court. I make no orders as to costs.

Orders accordingly.

Dated at Nairobi this7thday ofNovember2017

John M. Mativo

Judge

[1] John Beecroft, Words and Phrases Legally Defined, Volume 3:1-N, at Page 113

[2] The Supreme Court in the matter of the Interim Independent Electoral Commission, Constitutional Application No. 2 of 2011 (unreported)

[3] {1989} KLR 1

[4] Samuel Kamau Macharia v. Kenya Commercial Bank and Two others, Civ. Appl. No. 2 of 2011

[5] Act No. 19 of 2011

[6] Chapter 12A, Laws of Kenya

[7] {2012} eKLR

[8] Supra