[2014] KEHC 8814 (KLR)
The High Court determined that the dispute concerned the use, occupation, and title to land, specifically Homa Bay Commercial Plot No. 176. Under Article 162(2)(b) of the Constitution and section 13(1) of the Environment and Land Court Act, 2011, such matters fall within the exclusive jurisdiction of the Environment...
Source-derived case information.
- Citation
- [2014] KEHC 8814 (KLR)
- Parties
- Appellant: Mary Adhiambo Otieno; Respondent: Raymond Oloo Ndong
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 21 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Jurisdiction and Transfer
- Outcome
- Appeal transferred for want of jurisdiction.
- Judges
- DAS Majanja
- Legal Topics
- Jurisdiction of Courts, Transfer of Proceedings, Ownership of Land, Possession and Occupation, Environment and Land Court, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Adhiambo Otieno
Appellant
Raymond Oloo Ndong
Respondent
Procedural Posture
Civil Appeal / Ruling on Jurisdiction and Transfer
Legal Issues
- 1 Whether the High Court has jurisdiction to hear and determine disputes relating to the use, occupation, and title to land as per Article 162(2)(b) of the Constitution.
- 2 Whether the matter should be transferred to the Environment and Land Court for hearing and determination.
Ratio Decidendi
The High Court determined that the dispute concerned the use, occupation, and title to land, specifically Homa Bay Commercial Plot No. 176. Under Article 162(2)(b) of the Constitution and section 13(1) of the Environment and Land Court Act, 2011, such matters fall within the exclusive jurisdiction of the Environment and Land Court. Consequently, the High Court lacks jurisdiction to entertain the appeal, and the proper forum for its determination is the Environment and Land Court. The court therefore declined jurisdiction and ordered the transfer of the matter to the Environment and Land Court in Kisii for hearing and disposal.
Court Disposition
Appeal transferred for want of jurisdiction.
Orders
- The matter is transferred for hearing and disposal to the Environment and Land Court in Kisii.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE HIGH COURT AT HOMA BAY
CIVIL APPEAL NO. 21 OF 2013
BETWEEN
MARY ADHIAMBO OTIENO ………..……….…….. APPELLANT
AND
RAYMOND OLOO NDONG …………..………….. RESPONDENT
(Being an appeal from the Ruling and Order of Hon. S. M. Ongeri, PM dated 7th November 2012 in Chief Magistrates Court at Homa Bay in Civil Case No. 77 of 2012)
RULING
1. This appeal arises from a dispute concerning Homa Bay Commercial Plot No. 176. The respondent filed a suit against, amongst others, the appellant alleging that on diverse dates, the appellant purported to have bought the plot from Kenya Commercial Bank as chargee. She subsequently occupied it and leased it to Catherine Obura t/a Rose Restaurant. He therefore prayed for specific performance to compel the appellant to deliver vacant possession to the respondent.
2. The appellant stated in her defence that her deceased husband bought the property at auction in the year 2000. The Bank in its defence stated that the property was used as collateral but due to default by the debtor it sold the property at an auction for value.
3. This appeal is precipitated by two applications made by the appellant in the subordinate that were argued and dismissed. In summary the learned magistrate held that the court had jurisdiction to entertain the suit and that it was not time barred by the law of limitation.
4. From the brief facts I have outlined, the cause of action is one concerning the use and occupation of land within the meaning of Article 162(2)(b) of the Constitution which establishes a court of the status of the High Court to deal with, “the environment and the use and occupation of, and title to, land.” Article 165(6)of the Constitution states that the High Court shall not have jurisdiction in respect of matters, “falling within the jurisdiction of the courts contemplated in Article 162(2).”
5. The case and subsequent appeal deal with the ownership and possession Homa Bay Commercial Plot No. 176 hence this Court lacks jurisdiction to deal with matter. Under section 13(1) of the Environment and Land Court Act, 2011, the Environment and Land Court shall have appellate jurisdiction. This appeal rightly belongs to that court.
6. I therefore decline jurisdiction and order that this matter be transferred for hearing and disposal to the Environment and Land Court in Kisii.
DATEDandDELIVEREDatHOMA BAY this 30th day of October 2014.
D.S. MAJANJA
JUDGE
Mr Osoro instructed by Ochanda Onguru & Company Advocates for the appellant.
Mr Nyauke instructed by Nyauke & Company Advocates for the respondent.