[2022] KEHC 15117 (KLR)

Langata Community & 14 others v Optiven Limited & another (Commercial Case E012 of 2021) [2022] KEHC 15117 (KLR) (19 September 2022) (Ruling)

Neutral citation: [2022] KEHC 15117 (KLR)

Republic of Kenya

In the High Court at Kajiado

Commercial Case E012 of 2021

SN Mutuku, J

September 19, 2022

Between

Langata Community & 14 others

Plaintiff

and

Optiven Limited

1st Defendant

Small and Medium Enterpreneural Resource Centre

2nd Defendant

Ruling

1. The plaintiffs filed a suit against the defendants vide a plaint dated April 27, 2021. The claim giving rise to this plaint is a contract between each of the plaintiffs and the defendants with each of the plaintiffs agreeing to buy into the investment which comprised in parcels of land and greenhouses under management of the defendants under a project called “Kilimo Tujijenge”.

2. It is claimed that the defendants misrepresented the nature of the investment that upon completion of payment each of the plaintiffs would own a greenhouse with returns from the produce in the greenhouse. Each greenhouse was held out to give a profit of Kshs 175,000.

3. It is claimed that the contract was not honoured by the defendants giving rise to this suit in which the plaintiffs are claiming special and general damages for breach of contract, mense profits, interest and costs of the suit.

4. An issue of jurisdiction arose at the time this court was giving directions in this matter on July 18, 2022. Counsel for the 1st defendant argued that the entire suit was based on parcels of land that were to be sold together with greenhouses and that the particulars of misrepresentation are on the location of these parcels of land and their user of that land.

5. Counsel argued that the plaintiffs are raising issues of title to land, use and occupation of land which issues are dealt with by the Environmental and Land Court under article 165 of theConstitution. He argued that this court lacks jurisdiction to handle the matter.

6. Counsel for the plaintiffs argued that the plaintiff’s case is primarily on breach of contract and not occupation or use of land. He argued that this court has jurisdiction to determine this dispute. He cited Susan Achieng Butler v Redhill Ltd HCC Kiambu 2 of 2016.

Determination 7. The issue of jurisdiction is well settled in the case of Owners of Motor Vessel “Lillian S” v Caltex Oil (K) Limited [1989] KLR 1, where it was held 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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

8. On addressing the issue whether this court has jurisdiction, theConstitution under article 165(5) provides that the High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in article 162(2).

9. Article 162(2) of theConstitution provides that Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to the environment and use and occupation of, and title to land. Article 162(3) provides that Parliament shall determine the jurisdiction and functions of the courts contemplated in article 162(2).

10. Parliament established the Environment and Land Court Act (ELC), No 19 of 2011. Section 13 of the ELCAct 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 theConstitution 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 theConstitution, 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.

11. In Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another [2016] eKLR, the court held that when faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, court utilize thepre-dominant purpose test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works.

12. I have considered the issue of jurisdiction raised in this matter against the decision in Suzanne Achieng Butler case. According to the contract attached in the plaintiffs supporting documents, the plaintiffs were to purchase the land with Optiven Limited and invest Kshs 290,000/- into Kilimo Tujijenge. The 2nd defendant was then to supply, install and manage an 8 x- 15 m greenhouse structure.

13. The 1st defendant has argued that the claims made by the plaintiff are on occupation and use of land. Paragraphs 20 and 21 of the plaint gives a glimpse of the claim. It states that“By contracts in writing between each of the plaintiffs and the defendants, each of the plaintiffs agreed to buy into the investment which comprised parcels of land and greenhouses under management of the defendants, a project known as “Kilimo Tujijenge”. In order to induce each of the plaintiffs to make and complete the said contract and pay the said money, the defendants represented through various advertisements and sales pitches to each of the plaintiffs that (a) They would upon completion of payment receive a plot containing a managed greenhouse with returns from the produce in the greenhouse.”

14. To my mind, the issues being litigated relate to land use and land administration and management. It is clear to me that the investments the plaintiffs were buying into involved parcels of land (land ownership) and greenhouses managed on those parcels of land (land use). To my mind, this case is pre-dominantly about land ownership and use making it fall squarely under the jurisdiction of the ELC.

15. I therefore agree with counsel for the defendants that this matter falls under the jurisdiction of the Environment and Land Court. With that finding, this matter shall be transferred to the Presiding Judge at the Kajiado Environment and Land Court for hearing and determination. The Deputy Registrar is directed to place this file before the Presiding Judge at Kajiado Environment and Land Court on an appropriate date for directions.

16. It is so ordered.

DATED, SIGNED AND DELIVERED THIS 19TH SEPTEMBER 2022. SN MUTUKUJUDGE