Maseno University v Lawtex Construction Works Ltd (Civil Appeal E032 of 2025) [2026] KEHC 11060 (KLR) (7 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E032 OF 2025** **MASENO UNIVERSITY………………………………………. …. APPELLANT** **-VERSUS-** **LAWTEX CONSTRUCTION WORKS LTD…..………………… RESPONDENT** *(****Being an appeal from the judgment/decree of the Honourable E.A. Obina (Senior Principal Magistrate) delivered on 3/02/2025 in Kisumu MCCC No. E293 of 2022)*** **JUDGMENT** 1. The appellant herein Maseno University has approached this court being aggrieved by the Judgment delivered by Hon. E.A. Obina – SPM. 2. In the Memorandum of appeal dated 13/02/2025 the appellant listed the following grounds: - 3. That the Learned Trial Magistrate erred in fact and law by appropriating jurisdiction in this matter contrary to the existing laws on jurisdiction. 4. That the Learned Magistrate of the Trial court grossly misdirected himself in treating the Appellant’s statement of defence, counter claim, evidence and submissions on together with the relevant authority before him superficially and consequently arrived at an unjust and wrong decision. 5. That the Learned Magistrate of the trial court grossly misdirected and/or misconducted himself by becoming partisan and arguing the case on behalf of the respondent leading to the granting of un-pleading orders and consequently arriving at an unjust and wrongful decision. 6. That the Learned Magistrate, erred in fact and in law by failing to interrogate the particulars of the termination letter and subsequent reminders on record and thereby arriving at a wrong conclusion occasioning the respondent continuous occupation on the appellant’s premises. 7. That the Learned Trial Magistrate proceeded on wrong principles in awarding general damages without considering the nature and extent of the case, which award was not only inordinately high but also unjustified and underserving. 8. That the Learned Trial Magistrate erred in law and fact by failing to take into account considerations that he should have been taken into account before awarding the orders herein being appealed. 9. The appellant urged the court to allow the appeal set aside the judgment and award them costs. 10. On 12/03/2026 Hon. Justice J.M. Omido gave directions for parties to file submissions. The matter was subsequently mentioned before me on 19/5/2026. The appellants have complied. Not so the respondents. The case was then set for judgment. As later as yesterday 6/7/2026 the respondent was before me arising that the case be reopened and they be allowed to file submissions. I declined the invitation. 11. This being a first appeal I am under a duty to re-evaluate and assess the evidence on record and make my own conclusions. I must keep in mind that unlike the trial court I did not get the advantage of observing the demeanour of the witnesses and hearing the evidence first hand. 12. The duty of the first appellant court was set out in the case of **Selle and another versus *Associated Motor Board Company and others (1968) EA 123 whether Court of Appeal*** held: - ‘…..this court is not bound necessarily to accept the findings of facts by the Court below. An appeal to this court…’ is by way of retrial and the Court of Appeal is not bound to follow the subordinate court finding of facts. If it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.’ 1. Having set out the parameters of my mandate as above I wish to go back to the grounds of appeal. Apart from the first ground which challenges jurisdiction of the trial court and effectifully that of this court to handle the appeal the other five sound like submissions. They are lengthy statements. They are also repetitive. I do not need to cite any authorities for the position that repetitive and long winded grounds of appeal only serve to cloud the real issues. 2. They create a veritable haystack making determination of the appeal an exercise of navigating through a legal and factual maze. 3. Jurisdiction of the trial court was challenged. It is raised as a ground of appeal before me. I am obliged to consider it first. In the well-known case of ***Owners Motor Vessel ‘Lilian S’ versus Caltex Oil Kenya Limited (1989) KLR Nyaraga JA stated***: - ‘I think that it is 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 powers to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings guiding other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.’ 1. The appellant stated that pursuant to Section 13 (2) of the Environment and Land Court Act the trial court lacked jurisdiction. This was raised in submissions after close of the case. 2. The Learned Magistrate commenting on this objection stated: - ‘it is interesting to note that the defendant has raised another objection in their submissions. That the court does not have the jurisdiction to hear and determine this matter as it should have been filed at the Land and Environment court. I would have expected the defendant to raise this objection in their pleadings, in a notice of preliminary objection, in the cause of hearing just so that the plaintiff was given a chance to respond to it. One cannot be allowed to raise objection on point of law in their submissions otherwise how will the opposite party respond to the objection. The portions of the defendant’s submissions raising objection on the issue of jurisdiction are hereby struck out.’ 1. The observations by the Learned Magistrate are, with respect, problematic on several levels. They suggest that if parties keep quiet on the issue of jurisdiction then the court acquires the same. That a court will have jurisdiction by acquiescence. The Supreme Court pronounced itself on this very issue in ***Samuel Kamau Macharia versus Kenya Commercial Bank Limited and others (2012) eKLR*** where it stated: - ‘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’ 1. The long and short of the Supreme Court holding is that either the court has jurisdiction or not. It does not matter at what point it is raised. It does not even have to be raised. It is a matter of law. 2. The ultimate question is whether in this case the court had jurisdiction. The cited Section 13 (2) of the Environment and Land Court Act provides: - ‘(2) in exercise of its jurisdiction under Article 162 (2) (b) of the Constitution, the court shall have power to hear and determine dispute; - 1. Relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuation, mining minerals and other natural resources. 2. Relating to compulsory acquisition of land. 3. Relating to land administration and management. 4. Relating to public, private and community land and contracts, closes in action and other instruments granting any enforceable interests in land and 5. Any other dispute relating to environment and land.’ 6. Under Section 26 (3) and (4) read together with Section 9 of the Magistrate Court Act the Magistrates exercise the jurisdiction of Environment and Land court subject to pecuniary jurisdiction. 7. The case before the trial court and the appeal before me largely involves non-payment of rent, breach of a lease agreement and a claim for vacant possession. The issue is not merely a claim of debt. In the case of ***Chinya Development Company Limited and Another versus Kayser Investment Limited (2023 17279) (KLR) Justice Majanja held: -*** ‘Section 13 (2)(d) of the Environment and Land Court covers disputes relating to leases being contracts or instrument that grant enforceable interests in land. A lease creates an interest in favour of the lessee in the property of a lessor, which is registrable and enforceable. Thus any disputes that arises with respect to leases also fall within Section 13 (2)(d) of the Environment and Land Court Act and therefore within the jurisdiction of the ELC.’ 1. The facts and the law around this appeal snugly fit within Section 13 (2)(d) of the Act as explained by Justice Majanja. I am fully persuaded and in agreement. For the reasons I have given above it is my finding and holding that the trial court did not have jurisdiction to entertain the suit. It should have been filed in the ELC registry of the Magistrate’s court. 2. Having found that the court had no jurisdiction I will not go into the merits of the appeal on substantive issues determined by the Learned Magistrate. I will down my tools. 3. In the end I make the following orders: - 4. The appeal is allowed. 5. The entire findings of the Learned Magistrate are hereby set aside. 6. The respondent to pay costs of this appeal. 7. It is so ordered. **DATED, SIGNED AND DELIVERED IN VIRTUAL COURT IN MAKADARA THIS…7TH DAY OF JULY… .. 2026.** **HON. ALEX. K. ITHUKU** **JUDGE** Ms. Rama holding for Ms. Akinyi for the appellant Ms. Lawrence in person - present **HON. ALEX. K. ITHUKU** **JUDGE**