[2018] KEHC 810 (KLR)
The High Court determined that it lacked jurisdiction to hear and determine the dispute, as the matter concerned land (specifically, title No. LR 209/4300/161). The enactment of the Environment and Land Court Act and the provisions of Articles 162(2) and 165(5) of the Constitution divested the High Court of...
Source-derived case information.
- Citation
- [2018] KEHC 810 (KLR)
- Parties
- Applicant: Mohamed Yunis Soroya; Respondent: Mohamed Yusuf Khan Soroya; Respondent: Soroya Group Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 116 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- file transferred to the Environment and Land Court for hearing and disposal
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Jurisdiction of Courts, Transfer of Suit, Leave to Appeal Out of Time, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Yunis Soroya
Applicant
Mohamed Yusuf Khan Soroya
Respondent
Soroya Group Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the High Court has jurisdiction to hear and determine disputes relating to land under the current legal framework.
- 2 Whether the application for leave to appeal out of time and stay of execution can be entertained by the High Court.
Ratio Decidendi
The High Court determined that it lacked jurisdiction to hear and determine the dispute, as the matter concerned land (specifically, title No. LR 209/4300/161). The enactment of the Environment and Land Court Act and the provisions of Articles 162(2) and 165(5) of the Constitution divested the High Court of jurisdiction over such matters. Consequently, the court could not entertain the application for leave to appeal out of time or for stay of execution. The appropriate course was to transfer the file to the Environment and Land Court for hearing and determination.
Court Disposition
file transferred to the Environment and Land Court for hearing and disposal
Orders
- The file is transferred to the Environment and Land Court Division for hearing and disposal of the dispute.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC APPLICATION 116 OF 2016
MOHAMED YUNIS SOROYA.........INTENDED APPELLANT/APPLICANT
VERSUS
MOHAMED YUSUF KHAN SOROYA................................1ST RESPONDENT
SOROYA GROUP LIMITED................................................2ND RESPONDENT
RULING
This is an application by way of notice of motion under Sections 75 (1) Section 79 G, Section 95 of the Civil Procedure Act, Order 42, Order 43 of the Civil Procedure Rules, Sections 3A and 3B of the Appellate Jurisdiction Act for Orders that leave be granted to file appeal out of time, there be a stay of execution and that proceedings in the lower court be stayed. The reasons for seeking those orders are set out on the face of the application alongside an affidavit sworn by the advocate for the applicant.
The respondents opposed the application by filing a preliminary objection dated 6th and filed on 7th May, 2015. When I was preparing to write this ruling it transpired to me that the foundation of the dispute herein is a piece of land title No. LR 209/4300/161. On perusing the impact of the environment and Land Court Act No. 19 of 211 I was persuaded that this court is not possessed of jurisdiction to address the dispute herein. This is because the Enactment of that Law alongside the provisions of Articles 162 (2) and 165 (5) divested the High Court of any jurisdiction to deal with matters related to land and in particular a dispute of the nature in this proceedings.
That being the case, I direct that this file shall be transferred to the Environment and Land Court Division for hearing and disposal of the dispute herein.
Dated, signed and delivered at Nairobi this 11th day of December, 2018.
A. MBOGHOLI MSAGHA
JUDGE