[2024] KEHC 3972 (KLR)
The High Court determined that it no longer has jurisdiction to entertain or revive cases relating to ownership, occupation, and title to land following the enactment of the 2010 Constitution, specifically under Articles 162(2)(b) and 165(5)(b). As the defendants' application seeks to reopen a concluded land...
Source-derived case information.
- Citation
- [2024] KEHC 3972 (KLR)
- Parties
- Plaintiff: George Makahia Kirai; Defendant: Meshack Onger; Defendant: Kennedy Omondi
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 168 of 2004
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Judgment and for Substitution of Plaintiff
- Outcome
- Application declined for want of jurisdiction; file transferred to Environment and Land Court.
- Judges
- RE Aburili
- Legal Topics
- Jurisdiction of High Court, Transfer of Land Disputes, Environment and Land Court, Ownership of Land, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Makahia Kirai
Plaintiff
Meshack Onger
Defendant
Kennedy Omondi
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Judgment and for Substitution of Plaintiff
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain an application relating to ownership, occupation, and title to land after the promulgation of the 2010 Constitution.
- 2 Whether the application to set aside judgment and substitute the plaintiff can be entertained by the High Court.
Ratio Decidendi
The High Court determined that it no longer has jurisdiction to entertain or revive cases relating to ownership, occupation, and title to land following the enactment of the 2010 Constitution, specifically under Articles 162(2)(b) and 165(5)(b). As the defendants' application seeks to reopen a concluded land dispute, the only lawful course is to transfer the matter to the Environment and Land Court, which now has exclusive jurisdiction over such disputes. The court therefore declined to certify the application as urgent and ordered the transfer of the file to the appropriate court, closing the matter from the High Court's docket.
Court Disposition
Application declined for want of jurisdiction; file transferred to Environment and Land Court.
Orders
- The application dated 9th April 2024 is not certified as urgent.
- The file is transferred to the Environment and Land Court, Kisumu for further consideration.
Full Case Text
Judgment text and source record
28 paragraphs
Kirai v Onger & another (Civil Case 168 of 2004) [2024] KEHC 3972 (KLR) (19 April 2024) (Ruling)
Neutral citation: [2024] KEHC 3972 (KLR)
Republic of Kenya
In the High Court at Kisumu
Civil Case 168 of 2004
RE Aburili, J
April 19, 2024
Between
George Makahia Kirai
Plaintiff
and
Meshack Onger
1st Defendant
Kennedy Omondi
2nd Defendant
Ruling
1. This suit was initiated in this court on 9th November 2004 and amended vide Plaint dated 14th February 2005.
2. The Plaintiff was George Wakahia Kirai while the Defendants ae Meshack Onger and Kennedy Omondi.
3. The Plaintiff sued the Defendants jointly seeking for orders declaring the Plaintiff to be the absolute proprietor of parcel No Kisumu/Kasule/914 and Kisumu/Kasule/1214, an order of permanent injunction restraining the defendants from using or interfering with the Plaintiff’s quiet possession of the said parcels of land; an order directing the District Land Registrar, Kisumu to remove and cancel the caution registered against the title Kisumu/Kasule/914 and general damages for trespass to land.
4. An initial interlocutory injunction was issued by B. K. Tanui J on 14th February 2005.
5. The case was heard on 14th March 2006 and Judgment was delivered on 21st March 2006 by Warsame J granting the prayers sought in the plaint.
6. The Defendants have now filed an application dated 9th April 2024 under certificate of urgency seeking to set aside the Judgment entered on 21st March 2006, stay of execution of decree and substitution of the Plaintiff with Nicholas Wakahia as the Plaintiff is said to be deceased.
7. From the onset, this matter was concluded and the file was sent to the archives from where it was retrieved.
8. The claim is ownership and title to and occupation of land. As the Defendants seek to relitigate over a matter where jurisdiction of this court ceased to exist in 2010 via Articles 162 (2) (b) and 165 (5) (b) of the Constitution which bars this court from hearing and determining disputes relating to ownership, occupation and title to land, the only order I can make is to refer and transfer this new dispute to the Environment and Land Court for further directions, hearing and final determination.
9. Accordingly, I find that this court is devoid of jurisdiction to resuscitate this case. I decline to certify the application dated 9th April 2024 as urgent and direct the file to be transferred to the Environment and Land Court, Kisumu for further consideration.
10. This file is closed from the High Court.
11. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 19TH DAY OF APRIL, 2024R. E. ABURILIJUDGE