[2022] KEHC 14981 (KLR)

Maajabu Wendo Investment Co Ltd & 4 others v Maaki Commercial Co Ltd & 3 others (Civil Appeal 46 of 2018) [2022] KEHC 14981 (KLR) (2 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14981 (KLR)

Republic of Kenya

In the High Court at Nyeri

Civil Appeal 46 of 2018

JN Njagi, J

November 2, 2022

Between

Maajabu Wendo Investment Co Ltd

1st Appellant

Watson Wambugu Githaiga

2nd Appellant

Isaac Wangai

3rd Appellant

Cecilia Wangari Machommba

4th Appellant

Jennifer Wangari Ndirangu

5th Appellant

and

Maaki Commercial Co Ltd

1st Respondent

Daniel Wambugu Wangombe

2nd Respondent

Simon Wanjohi Murage

3rd Respondent

Wellington Kuria Kibuthu

4th Respondent

Ruling

1. This matter is coming up for a ruling in a notice of motion dated June 8, 2021 wherein the applicants/respondents are seeking for the dismissal of the appellants` appeal for want of prosecution.

2. I have perused the record of the lower court in the matter. By their further amended plaint dated June 6, 2011 the appellants herein who were the plaintiffs at the lower court were seeking the following orders against the applicants/defendants:An order to restrain the defendants jointly and severally from using the name of the 1st plaintiff in the affairs of the 1st defendant and also to restrain the defendants, their servants and agents from interfering or trespassing onto the 1st plaintiff`s portion of land known as Kibiriti Farm within Land Reference No.1XXX3 along Kiganjo- Nanyuki road which portion the 1st plaintiff has allocated to its members.

3. The suit at the lower court which is the subject of the appeal herein therefore involved an issue on trespass to land. Article 162 (2) (b) of the Constitution of Kenya 2010 as read with Section 13 of the Environment and Land Court Act No. 19 of 2011 reserves the jurisdiction on matters related to land on the Environment and Land Court. Section 13 (1) of the Environment and Land Court Act provides states as follows: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 relating to environment and land.In the premises, this court lacks jurisdiction to entertain the appeal. The court with the requisite jurisdiction in the appeal is the Environment and Land Court. It is now settled law that where a court has no jurisdiction it has to lay down its tools. The Supreme Court in Samuel Kamau Macharia and another – vs. Kenya Commercial Bank and 2 others, Application No. 2 of 2011, pronounced itself on jurisdiction thus:“[68] A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. …Where the Constitution operate within the constitutional limits.”It cannot expand its jurisdiction through judicial craft or innovation…”

4. Having found that the right forum for hearing and determination of the appeal is the Environment and Land Court, I decline to make any further step in the appeal and more so in respect to the notice of motion dated June 8, 2021.

5. For the above stated reasons, the appeal is transferred to the Environment and Land Court Nyeri for hearing and determination.Costs be in cause.

Signed this 14th day of September 2022. J. N. NJAGIJUDGEDELIVERED, DATED AND SIGNED AT NYERI THIS 2ND DAY OF NOVEMBER, 2022. By:HON. JUSTICE M. MUYAJUDGEIn the presence of:Mrs Macharia hold brief for Njuguna: for ApplicantsKebuki Wachira: for RespondentsCourt Assistant: Kinyua30 days R/A