[2023] KEHC 24386 (KLR)

Mohamed v Abafae & 10 others (Commercial Case E003 of 2023) [2023] KEHC 24386 (KLR) (30 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24386 (KLR)

Republic of Kenya

In the High Court at Mombasa

Commercial Case E003 of 2023

DKN Magare, J

October 30, 2023

Between

Jelan Athman Abafae Mohamed

Applicant

and

Mohamed Omar Abafae

1st Respondent

Neema Omar Athman

2nd Respondent

Fatma Omar Athman Abafae

3rd Respondent

Rukiya Omar Abafae

4th Respondent

Najla Omar Osman

5th Respondent

Khadija Omar Osman

6th Respondent

Manuu Omar Athman

7th Respondent

Aminah Omar Athman Abafae

8th Respondent

Athman Omar Abafae

9th Respondent

Omar Athman Abafae

10th Respondent

Haze Investments Limited

11th Respondent

Ruling

1. This matter came before me for hearing of several applications. The first one is dated 17/4/2023 and. The are 2 others dated 2/5/2023 and 14/6/2023. I directed that submissions be filed by 19/7/2023. Some of the applications are sincerely not material for filing. Some are directing the court to see, what it ought to see.

2. This is surprising as the court is presumed to know the law. It cannot be that even on mundane things, the court needs to give directions. There has thus been unnecessary acrimony between the parties on issues of fact that the court can only deal with at the trial. As I was preparing to hear the matter, I was in a conundrum. I needed to be satisfied that I had jurisdiction to hear and determine the matter.

3. Jurisdiction flows from the subject matter, what we call jurisdiction ratione materiae. The main prayers sought are: -i.That a temporary injunction do issue against the Respondent by themselves and/or their agents from collecting, receiving monthly rentals from any tenant and/or tenants from the suit premises known as Msa/Block xxi/179 pending the hearing and determination of this Application.ii.That an injunction do issue against the Respondents by themselves and/or their agents from collecting, receiving monthly rentals from any tenant and/or tenants from the suit premises known as Msa/block xxi/179 pending the hearing and determination of the suit.iii.That pending the hearing and determination of the suit, all rental income in respect to the suit premises known as Msa/Block xxi/179 be deposited in Court.iv.Is the Applicant a shareholder/director of the company known as Haze Investments Limited?v.Is the Applicant entitled to receive and/or be paid dividends from the only asset Msa/Block xxi/179 of the company known as known as known as Haze Investments Limited, and if yes, how much per month or per year?(iv)Have the Respondents been paying rates for the only asset of the company to the County Government of Mombasa, if not how much so the outstanding arrears?

4. In Sheila Munubi v Adah Onyango & another [2021] eKLR, Justice James Rika stated as follows:“20. On jurisdiction, a Court must always be satisfied that it has the subject matter jurisdiction [jurisdiction ratione materiae], personal jurisdiction [jurisdiction ratione personae] and temporal jurisdiction [ jurisdiction ratione temporis], to proceed with any Claim or Petition.

5. The Court proceeded as doth: -“26. In Constitutional Petitions, personae jurisdiction must be interpreted in the context of Article 22 [1] of the Constitution, which states that, ‘’ every person has the right to institute court proceedings, claiming that a right of fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.’’ Article 22 [2] extends the right to bring Petitions to individuals acting on their own behalf; on behalf of other persons who cannot act in their own names; on behalf of a class of persons; or acting in the public interest. Article 258 of the Constitution similarly allows any person to initiate proceedings in enforcement of the Constitution. If it is established that the subject matter, relates to employment and labour relations, there is a Court created to deal with the subject matter and jurisdiction ought not to be problematic. Courts of equal status to the High Court, contemplated by the Constitution, are based on subject matter jurisdiction.”

6. Jurisdiction itself is the right to decide. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where Justice Nyarangi, JA, as he then was, posited succinctly as follows: -“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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given “power of attorney.

7. Therefore, a court on being moved or suo moto, must be satisfied that it has jurisdiction to hear and determine a matter. It is my considered view that parties must consolidate their thoughts before, approaching the court.”

8. The originating summons seeks inter alia the following. Other than sharing dividends, which are essentially part of rent, the rest of the claim is on injunction over lad, rent and misuse of rent. There is an auxiliary issue of attorney. The plaintiff does not have a dispute on shareholding. The question is purely on sharing of rent.

9. The application dated 2/5/2023 sought he following orders: -a.There be stay of proceedings in this mattersb.The originating summons be struck out.

10. This is based on the ground that the General Power of attorney given to Abubakar Omar by Jelan Omar Antihuman is a forgery. I don’t know how we are expected to decide this on affidavit evidence.

11. Further that because he is unable to attend Court Jelan Omar Athman had in CC 244/2021 indicated that he is out of the country. It is their view that Abubakar Omar was not in Kenya on 15/6/2022 to sign the power of attorney. The applicant then lays down 16 argumentative grounds with sub grounds.

12. The application is supported by the affidavit of Rukiya Omar Abafae, reiterating the contents of the grounds on the face of the application.

13. The justification given is that the plaintiff Jelan Omar Athman is mentally ill. They question they rely on is that Jelan Omar Athman has acquired a habit of forging sensitive documents. Among them is a bundle marked J and K.

14. There was a further affidavit dated 19/5/2023. There is annexed a report from the directorate of Criminal Investigation over a medical report.

15. There is a letter dated 3/5/2013 from one Dr. Rehan Kihara stating that the doctor named it not from the hospital. I have seen a host of other reports alleging forgery.

16. The second application is dated 14/6/2023. It seeks the following orders:-a.Stay of further hearing pending the hearing and determinationb.The court be pleased to its orders/directions given on 30/5/2023c.The court be pleased to strike out the suit hereind.The costs of this application be provided for.

17. The application is untenable as the same relates to directions on hearing. Directions can be revisited at any time. I therefore strike out the application dated 14/6/2023 in limine.

18. While I was considering this matter, I had to satisfy myself of the jurisdiction of this court. What kept nagging me is the subject matter what is the true subject matter of this suit? However, before I proceed to note that the question is a mixed one. Though shown as a dispute over shares, it is in reality a dispute on use of land parcels and the rental premises thereon.

19. In Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR, the Court stated as doth: -“100. The Supreme Court in Republic v Karisa Chengo & 2 others, amplified and pertinently held that each of the Superior Courts established by or under the Constitution has jurisdiction only over matters exclusively reserved to it by the Constitution or by a statute as permitted by the Constitution. The holding in this case however, does not resolve the knotted question of which court among the High Court and the two equal status Courts under article 162(2)(b) should be seized of jurisdiction in controversies in hybrid cases. Hybrid cases are cases where issues cut across the exclusive jurisdiction reserved for each of the three courts. As demonstrated by the issues identified above, this is one such hybrid case.

20. The Court continued that in cases of maze issues or denial of rights, then the high court has jurisdiction as well as the courts of equal status, the court stated: -“103. After a wide-ranging analysis and consideration of the applicable provisions of the Constitution and in particular, articles 165(3), 162(2) and (3), and section 13 of the Environment and Land Court Act, and the amendments thereto, the five Judge Bench of the High Court held as follows: –In its strict sense the “jurisdiction” of a Court refers to the matters the Court as an organ not an individual was competent to deal with and reliefs it was capable of granting. Courts were competent to deal with matters that the instrument, be it the Constitution or a piece of legislation, creating them empowered them to deal with. Such jurisdiction could be limited expressly or impliedly by the instrument creating the Court.The jurisdiction of the High Court was unlimited save only as provided by the Constitution. The High Court had express jurisdiction to deal with and determine matters of a Constitutional nature under article 165(3) of the Constitution. Indeed, while the Constitutional claw back was found under article 165(5), article 165(3) (e) of the Constitution further confirmed that the High Court’s jurisdiction could be extended further pursuant to any statutory provision. For example, the Judicature Act which conferred the specialized admiralty jurisdiction. The Constitution however did not provide for any other written law to limit the jurisdiction of the High Court.Both the High Court and the ELC Court had a concurrent and or coordinate jurisdiction and could determine Constitutional matters when raised and do touch on the environment and land. Neither the Constitution nor the ELC Act limited the High Court’s jurisdiction in that respect ….A closer reading of the Petition especially the complaints and the reliefs sought revealed that the petition was simply not about the environment and land. Substantial questions had been raised not only on the process of compulsory acquisition of land but also on the integration and generation of the environment. Questions had been raised about denial of access to information as well as a threatened contravention or violation of the right to fair administrative action. Questions had also been raised on the violation and or further threatened violation of the dignity of the petitioner’s constituents.

21. The purpose of pleadings is to give an inkling on the jurisdiction ratione materiae and examine the contest to understand the nature of the case. The court has to conceptualize, problematize contextualize the pleadings to be able to get the correct jurisdiction. It is not just to allow the court to assume of regale jurisdiction on basis of craft. In Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another [2016] eKLR,“Ordinarily, the pleadings give the Court sufficient glimpse to examine the transaction to determine whether sale of land or other services was the predominant purpose of the contract. This test accords with what other Courts have done and therefore lends predictability to the issue."

22. The Supreme Court has had an opportunity in numerous occasions and it has never squandered such to clarify the extent of jurisdiction of this Court and Courts of equal status. In Republic v Karisa Chengo & 2 others [2017] eKLR, the supreme court posited as doth: -“79]It follows from the above analysis that, although the High Court and the specialized Courts are of the same status, as stated, they are different Courts. It also follows that the Judges appointed to those Courts exercise varying jurisdictions, depending upon the particular Courts to which they were appointed. From a reading of the statutes regulating the specialized Courts, it is a logical inference, in our view, that their jurisdictions are limited to the matters provided for in those statutes. Such an inference is reinforced by and flows from Article 165(5) of the Constitution, which prohibits the High Court from exercising jurisdiction in respect of matters “reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or (b) falling within the jurisdiction of the Courts contemplated in Article 162(2).”

23. In Re-Interim Election Commission Petition No. 2 of 2011, the Supreme Court rendered itself as doth: -[29]Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):“I think that it is reasonably 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 power to make one more step.”[30]The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.

24. The supreme court succinctly continued to require, nay demand that the constitution be interpreted in Manner that promotes the rule of law and holistic interpretation of the constitution. In the case of in the Matter of Interim Independent Electoral Commission [2011] eKLR. The supreme court posited as doth: -86]In common with other final Courts in The Commonwealth, Kenya’s Supreme Court is not bound by its decisions, even though we must remain alive to the need for certainty in the law. The rules of constitutional interpretation do not favour formalistic or positivistic approaches (Articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human-rights based, and social-justice oriented State and society. The values and principles articulated in the Preamble, in Article 10, in Chapter 6, and in various other provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the Courts.

25. In S.K MachariavKCB, the Supreme Court, the Court was particular that there must be jurisdiction and the same cannot be conferred by consent by connivance or by craft. The Court was precise and held as doth: -“As held in the matter of Advisory opinion of the Court under article 163 of the Constitutional Petition No. 2 of 2011 at para 30, the Court stated, “A Court may not arrogate itself jurisdiction through craft of interpretation or by way of endeavours to discern of interpret the intentions of Parliament where legislation is clear and there is no ambiguity.”

26. On the other hand, also the Court cannot by sheer laziness or dislike for a file divest itself of jurisdiction that it has.

27. The consequence of this is that the entire matter is wrongly before this court. It is better handled with finality as a predominant issue over rent in the ELC Court.

Determination 28. In the circumstances I make the following orders: -a.Consequently, the matter is transferred to the Environment and Land Court. It shall be mentioned in that Court on 16/11/2023 for directions.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 30TH DAY OF OCTOBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-No appearance for parties