[2019] KEHC 4850 (KLR)
The High Court lacks jurisdiction to hear and determine disputes relating to land, including issues of occupation, use, and title, as such matters fall within the exclusive mandate of the Environment and Land Court under Articles 162(2) and 165(5) of the Constitution and Section 13 of the Environment and Land Court...
Source-derived case information.
- Citation
- [2019] KEHC 4850 (KLR)
- Parties
- Plaintiff: Mary Njeri Mburu (suing as personal representative of the estate of Karugu Guandai); Defendant: Benson Waweru Ngeru; Appellant: Benson Waweru Ngeru; Respondent: Mary Njeri Mburu (suing as personal representative of the estate of Kaguru Guandai); Respondent: Kenya Industrial Estate Ltd; Respondent: National Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 211 of 2013
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection and Jurisdiction
- Outcome
- Suit transferred to the Environment and Land Court for hearing and determination due to lack of jurisdiction.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Jurisdiction, Environment and Land Court, Limitation of Actions, Vacant Possession, Mesne Profits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Njeri Mburu (suing as personal representative of the estate of Karugu Guandai)
Plaintiff
Benson Waweru Ngeru
Defendant
Benson Waweru Ngeru
Appellant
Mary Njeri Mburu (suing as personal representative of the estate of Kaguru Guandai)
Respondent
Kenya Industrial Estate Ltd
Respondent
National Bank of Kenya
Respondent
Procedural Posture
Civil Case / Ruling on Preliminary Objection and Jurisdiction
Legal Issues
- 1 Whether the High Court has jurisdiction to hear and determine disputes relating to land, including occupation, use, and title, in light of the Constitution and the Environment and Land Court Act.
- 2 Whether the suit should be struck out for being time-barred, frivolous, vexatious, or an abuse of court process as raised in the preliminary objection.
Ratio Decidendi
The High Court lacks jurisdiction to hear and determine disputes relating to land, including issues of occupation, use, and title, as such matters fall within the exclusive mandate of the Environment and Land Court under Articles 162(2) and 165(5) of the Constitution and Section 13 of the Environment and Land Court Act. The prayers sought by the plaintiff, specifically for vacant possession and mesne profits, are matters that oust the jurisdiction of the High Court. Consequently, the court cannot address the preliminary objection or the substantive suit and must transfer the matter to the Environment and Land Court for hearing and determination.
Court Disposition
Suit transferred to the Environment and Land Court for hearing and determination due to lack of jurisdiction.
Orders
- This suit is transferred to the Environment and Land Court for hearing and determination.
- The costs shall be in the cause.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NUMBER 211 OF 2013
MARY NJERI MBURU (suing as personal representative of the estate of
KARUGU GUANDAI...................................................................PLAINTIFF
VERSUS
BENSON WAWERU NGERU..................................................DEFENDANT
COUNTER CLAIM
BENSON WAWERU NGERU......................................................PLANTIFF
VERSUS
MARY NJERI MBUGU (Suing as personal representative of the estate of
KAGURU GUANDAI......................................................1ST DEFENDANT
Plaintiff by way of original action.
KENYA INDUSTRIAL ESTATE LTD.........................2ND DEFENDANT
NATIONAL BANK OF KENYA..................................3RD DEFENDANT
RULING
At the centre of this dispute is a parcel of LR. No. 209/11470. In the plaint first filed on 6th June 2013 and the subsequent defences and counter claim, the parties herein claim various interests related thereto.
Subsequently, the 2nd Defendant herein filed a Notice of Preliminary Objection based on Section 7 of the Limitation of Actions Act, Cap 22 Laws of Kenya and Order 5 Rules 1 and 2 of the Civil Procedure Rules praying that the suit should be struck out for being incurably defective. It was also stated in the notice that the suit is frivolous, vexatious and an abuse of the court process, and further that it was incompetent and bad in law.
This suit was lodged in the Civil Division and the record shows that it has been handled by at least by two other judges apart from me. After giving directions relating to the preliminary objection, I retired to consider the ruling by going through the entire record. It is when it dawned on me that this court may not have jurisdiction to continue addressing the issues herein, including the Notice of Preliminary Objection.
The subject matter herein being land, the jurisdiction of this court comes into focus in view of Articles 162 (2) and 165 (5) of the Constitution. Further there is the Environment and Land Court Act No. 19 of 2011 Section 13 thereof.
Any dispute relating to “the environment and the use and occupation, and title to, land” may not be within the jurisdiction of this court going by the provisions of law cited hereinabove. After the citation of the pleadings as set out in the plaint, the plaintiff set out the prayers inter alia as follows: -
i) Vacant possession or eviction orders for the potion of the suit occupied by the defendant
ii) Mesne profits to be assessed by a valuer for a period from November 2004 to the date of recovery of vacant possession.”
Clearly, the prayers ousted the jurisdiction of this court and placed the claim under the Environment and Land Court as provided by law. The foregoing being the case, I hereby declare that I have no jurisdiction to address, not only the Notice of Preliminary Objection but also the entire suit as pleaded by the parties.
The order that commends itself is that this suit is now transferred to the Environment and Land Court for hearing and determination.
The costs shall be in the cause.
Dated, signed and delivered at Nairobi this 29th day of May 2019
A. MBOGHOLI MSAGHA
JUDGE