[2022] KEHC 9944 (KLR)

Masila v Mutungi & another; Mutungi (Interested Party) (Civil Appeal E518 of 2021) [2022] KEHC 9944 (KLR) (Civ) (7 June 2022) (Ruling)

Neutral citation: [2022] KEHC 9944 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E518 of 2021

DO Chepkwony, J

June 7, 2022

Between

Elizabeth Kanini Masila

Appellant

and

Lydiah Kalondu Mutungi

1st Respondent

Lilian Mumbua Kalondu

2nd Respondent

and

Paul Nyamai Mutungi

Interested Party

Ruling

1. The Applicant filed a Notice of Motion application dated 16th September, 2021 seeking for:-a.That this application be certified urgent and that in the first instance service of the same upon the Respondent be dispensed with and that it be heard ex-parte.b.That this Honourable Court do order that the execution of the Judgment delivered herein on 30th July, 2021 be stayed pending the inter-parties hearing and determination of this application.c.That this Honourable Court do order that the execution of the Judgment delivered herein on 30th July, 2021 be stayed pending the hearing and determination of this Appeal.d.That the costs of this application be specifically provided for.

2. Alongside the application, the Applicant filed a Memorandum of Appeal challenging the Judgment of the Chief Magistrate Hon. L. Gicheha (M/S) delivered on 30th July, 2021 vide Milimani Commercial Court Case No.5447 of 2017.

3. The Defendant/Respondent herein then filed a Notice of Preliminary Objection in opposition of the Appellant’s Application dated 16th September, 2021 and the subsequent Appeal on grounds that;1. This Honorable Court lacks the jurisdiction to hear and determine that Appellants Appeal dated 16th September, 2021 by virtue of Article 162(2) of the constitution of Kenya and Section 13 of the Environment and Land Court Act;2. This Honorable Court has no jurisdiction to entertain this Appeal by virtue of the rule established in Karisa Chengo & 2 Others –vs- Republic (2015) eKLR.

4. The parties canvassed the Notice of Preliminary Objection by way of written submissions which I have read and considered. It is worthy of note that in their respective submission, while the Defendant/Respondent contests the jurisdiction of this court on the ground that the dispute revolves around property registered under the Land Act, Land Registered Act, 2021, the Appellant maintains that the issues in dispute fall within the jurisdiction of this court and not the Environment and Land Court.

Analysis and Determination 5. At this stage, the issue before this court for determination of whether the court has the requisite jurisdiction to entertain the application and subsequent appeal filed by the Applicant. It is trite that what constitutes a Preliminary Objection is well captured in the case of Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors(1969) EA 696 where it was observed that;“----a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.

6. An objection on jurisdiction of a court is a question of law. The locus classicus case of Owners of the Motor Vessel “Lillian S” –vs- Caltex Oil (Kenya) Ltd(1989) KLR 1 has this to state on jurisdiction:-“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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

7. I have perused the Memorandum of Appeal dated 12th August, 2021. It is safe to conclude that the issue in dispute relates to the ownership of House No.L.R NO. NRB/Block 75/516 and whether the Appellant and her children are entitled to a share in Plot No. 359-Athi River. In particular, the 4th ground of appeal reads;“The learned Magistrate erred in fact and in law in failing to find and declare that the Appellant was entitled to use L.R No.NRB/Block 75/516 as her residential house until the children of the late Richard Kioko and the Appellant attained the age of majority and get employed and, that the Appellant and her children are permanently entitled to a share of Plot No.359-Athi River”

8. Article 162 (2)(b) of the Constitution provides:-(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—(a)employment and labour relations; and(b)the environment and the use and occupation of, and title to, land.Section 13 of the Environment and Land Act provides:-1. 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 applicable in Kenya relating to environment and land.2. In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, 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; and(e)any other dispute relating to environment and land.3)Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.4)In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.(5)Deleted by Act No. 12 of 2012, Sch.(6)Deleted by Act No. 12 of 2012, Sch.(7)In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including—(a)interim or permanent preservation orders including injunctions;(b)prerogative orders;(c)award of damages;(d)compensation;(e)specific performance;(g)restitution;(h)declaration; or(i)costs.

9. Further, the decision of the Supreme Court in in the case of Republic –vs- Karisa Chengo & 2 Others (Supreme Court Petition No.5 of 2015) 2017 eKLR, the Supreme Court pronounced itself as follows: -“Flowing from the above, it is obvious to us that status and jurisdiction are different concepts. Status denotes hierarchy while jurisdiction covers the sphere of the Court’s operation. Courts can therefore be of the same status, but exercise different jurisdictions. That is why this Court has reaffirmed its position that the jurisdiction of Courts is derived from the Constitution or legislation…..In addition to the above, we note that pursuant to Article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of Courts, with sui generis jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.”

10. Therefore, it cannot be gainsaid that such declarations can only be made by the Environment and Land Court after establishing the validity of the alleged Power of Attorney and whether there existed a promise that would entitle the Appellant the ownership and share of the properties in question.

11. In the circumstances, from the facts of the case in question, I am satisfied that this court has no jurisdiction to entertain the Appeal herein. The Appellants Appeal dated September 16, 2021 is therefore struck out with costs to the Respondent with directions that the appeal be filed in the proper forum.It is so ordered

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF JUNE, 2022D. O. CHEPKWONYJUDGEIn the presence of:Mr. Siagi counsel for AppellantNo appearance for and by RespondentCourt Assistant - Kevin