[2024] KEHC 9854 (KLR)
The High Court lacks jurisdiction to entertain the appeal and application because the underlying dispute, as pleaded in the lower court plaint, concerns occupation and use of land. Article 162(2) of the Constitution vests such matters exclusively in the Environment and Land Court. Jurisdiction is determined at the...
Source-derived case information.
- Citation
- [2024] KEHC 9854 (KLR)
- Parties
- Appellant: Monica Omukoko Khang’ati (Suing as Legal Representative of the Estate of the Late David Khang’ati Peter Wafula); Respondent: Vincent Wanyonyi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E025 of 2024
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Jurisdiction
- Outcome
- Application and appeal struck off for want of jurisdiction.
- Judges
- REA Ougo
- Legal Topics
- Jurisdiction of Court, Land Occupation Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monica Omukoko Khang’ati (Suing as Legal Representative of the Estate of the Late David Khang’ati Peter Wafula)
Appellant
Vincent Wanyonyi
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Jurisdiction
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain the appeal and application relating to land occupation and use.
- 2 Whether the matter should properly be before the Environment and Land Court (ELC).
Ratio Decidendi
The High Court lacks jurisdiction to entertain the appeal and application because the underlying dispute, as pleaded in the lower court plaint, concerns occupation and use of land. Article 162(2) of the Constitution vests such matters exclusively in the Environment and Land Court. Jurisdiction is determined at the time of filing based on the pleadings, and cannot be conferred by subsequent orders or applications. The proper forum for the applicant is the Environment and Land Court. Consequently, both the application and the appeal are struck off for want of jurisdiction.
Court Disposition
Application and appeal struck off for want of jurisdiction.
Orders
- The application dated 10th June 2024 is struck off.
- The appeal is struck off.
Full Case Text
Judgment text and source record
18 paragraphs
Khang’ati (Suing as Legal Representative of the Estate of the Late David Khang’ati Peter Wafula) v Wanyonyi (Civil Appeal E025 of 2024) [2024] KEHC 9854 (KLR) (26 June 2024) (Ruling)
Neutral citation: [2024] KEHC 9854 (KLR)
Republic of Kenya
In the High Court at Bungoma
Civil Appeal E025 of 2024
REA Ougo, J
June 26, 2024
Between
Monica Omukoko Khang’ati (Suing as Legal Representative of the Estate of the Late David Khang’ati Peter Wafula)
Appellant
and
Vincent Wanyonyi
Respondent
Ruling
1. Having listened to the counsels on the preliminary objection to the Motion dated 10th June 2024, I find that I lack jurisdiction to handle this matter. From the plaint filed in the lower court in Bungoma MCELC NO.7 of 2019, which was not attached to the supporting affidavit when the matter came under the certificate of urgency and interim orders were given, clearly paragraph 8 of the said plaint indicates that the plaintiff was seeking peaceful occupation and enjoyment of the land parcel that was being interfered with. Occupation in plain English includes the use of the land which is mentioned in Articles 162 (2) of the Constitution 2010. The orders given were a result of the plaintiff's claim in the plaint dated 26. 10. 2018. This is after the parties were heard.
2. I cannot now acquire jurisdiction as a result of the order on restitution. The issue is not the rights of the applicant. Jurisdiction stems right from the time the plaint was filed in the lower. The matter belongs to the ELC court as correctly submitted by the respondent’s counsel. Had I seen the plaint I would have been guided on what orders to give. It has now been brought to my attention and with the pleadings before I must say to the applicant that this court lacks the jurisdiction to entertain the appeal and the application before it.
3. The application and appeal are therefore struck off. The applicant has an avenue to go before the ELC court. Each party is to bear its costs. The file is closed.
DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 26TH DAY OF JUNE, 2024R.E OUGOJUDGEIn the presence;Miss Chunge for the Appellant/ApplicantMr. Bwonchiri for the RespondentWilkister - C/A