[2023] KEELC 20847 (KLR)

Muchiri & another v Muchiri & another (Environment and Land Appeal E12 of 2022) [2023] KEELC 20847 (KLR) (27 September 2023) (Judgment)

Neutral citation: [2023] KEELC 20847 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment and Land Appeal E12 of 2022

LA Omollo, J

September 27, 2023

Between

Peter Mwangi Muchiri

1st Appellant

Simon Muchiri

2nd Appellant

and

James Muchiri

1st Respondent

Land Registrar Nakuru

2nd Respondent

(Being an appeal against the Judgement of the Honorable E.G Nderitu (CM) delivered on the 15th March, 2022 in Molo CMCC ELC 58 of 2019)

Judgment

Introduction. 1. By the Memorandum of Appeal dated 6th April, 2022. the Appellant appeals against the judgement of Hon. E.G Nderitu (CM) delivered on the 15th March, 2022 in Molo CMCC ELC 58 of 2019.

2. The Grounds of Appeal are as follows:a.The Learned Trial Magistrate erred in Law and in fact when she failed to address herself on the issue of jurisdiction at the onset of the case.b.The Learned Trial Magistrate erred in law and in fact when (sic) struck out the Plaintiff’s case for want of jurisdiction whereas the case had been transferred to from the ELC High Court (sic) to the Lower Court suo motu.c.The Learned Trial Magistrate erred in law and in fact when she failed to find that the suit was transferred by the ELC High Court (sic) to the Lower Court and directed the Appellants to have the suit transferred back to the ELC High Court (sic) rather than striking out the same.d.The Learned Trial Magistrate erred in law and in fact in failing to find that the Appellants would suffer injustice and hardship by striking out the suit even when they had initially filed the same at the ELC High Court(sic).

3. The suit before the subordinate court was commenced vide a Plaint dated 8th July, 2019. The Plaint was subsequently amended on 3rd December, 2020.

4. The Plaintiffs (now Appellants) in the amended Plaint averred that at all material times relevant to the suit they were the registered owners of all that Parcels of Land known as Mau Summit/ Molo Block 5/1347 and Mau Summit/Molo Block 5/1348 having had the same transferred to them by their Father.

5. They also averred that they were always in use and occupation of the parcels with the 1st Plaintiff leasing a portion and cultivating the other, as he resides in Nyeri where he works.

6. The Plaintiffs further averred that in 2008, the 1st Defendant (now Respondent) instituted proceeding at the Land Disputed Tribunal which were heard and determined in his absence as no attempt was made to summon them to give them an opportunity to be heard.

7. The Plaintiffs (now Appellants) also averred that the 1st Defendant (now Respondent) then had the award adopted and based on this award the Court gave orders to the effect that the Plaintiffs titles be cancelled and revert back to the Plaintiffs Father’s name.

8. The Plaintiffs (now Appellants) averred that the suit parcel have never been part of their Father’s estate as the same was transferred in 1992 when he was still alive and everyone else was given a share land when he (their father) was alive.

9. The Plaintiff (now Appellants) further averred that even though the 1st Defendant (now Respondent) claims that they (Plaintiffs) have deprived him of his right to inheritance since 2001 when their father passed on he has never instituted any succession proceedings to lay his claim.

10. The Plaintiffs (now Appellants) stated that their case was that the decision arrived at by the Tribunal and subsequent orders are irregular and illegal and ought to be treated with the contempt it deserves.

11. The Plaintiff’s (now Appellants) listed the particulars of irregularity and or illegality asa.purporting to deal with parcels of land registered in the names of the Plaintiffs without informing or involving themb.Making orders adverse to the Plaintiff in respect to the suit land without giving him an opportunity to be heardc.ordering the cancellation of suit land under the registered land act while it had no jurisdiction to do so.

12. The Plaintiff’s (now Appellants) averred that unless the award of the Tribunal and subsequent orders were set aside, they stood to lose their property without being heard and in the most irregular manner.

13. The Plaintiff’s (now Appellants) claim against the Defendants are for permanent injunction restraining them from interference with the registration of their titles or at all.

14. The Plaintiff (now Appellants) sought the following prayers against the Defendants jointly and severally:a.A declaration that Molo land tribunal proceedings of 6 of 2008 between the 1st Defendant against the Plaintiff’s, the subsequent award and order of the Molo Court adopting the award as judgment of the court and consequent order for cancellation of the Plaintiff’s titles to the parcels of land known as Mau Summit/Molo Block 5/1347 and Mau Summit/Molo Block 5/1348 is irregular, illegal and void.b.An order setting aside the award of the Molo Land Disputes Tribunal No. 6 of 2006 and the subsequent order of the court adopting the award and judgment of the court and order for cancellation of the Titles in Molo Land Dispute No 40 of 2008. c.An order directing the Land Registrar to restore the registration of the Plaintiff’s as owners of the Mau Summit/Molo Block 5/1347 and Mau Summit/Molo Block 5/1348 respectively into the Green card.d.An order for permanent injunction restraining the Defendants herein from interfering with the registration of the Plaintiff’s Titles to the parcels of Land known as Mau Summit/Molo Block 5/1347 and Mau Summit/Molo Block 5/1348. e.Costs of the suit plus interests.

15. The 1st Defendant (now Respondent) filed a Statement of Defence dated 5th November, 2020. This was in response to the Plaintiffs plaint dated 8th July, 2019. There is no record of the 1st Defendant filing a response to the amended plaint dated 3rd December, 2020.

16. The 1st Defendant (now Respondent) admitted that the Plaintiffs were the registered owner of that parcels of land known as Mau Sumiit/Molo Block 5/1347 and 1348 respectively but denies that the same was transferred to them by their late father. The Plaintiff shall be put to strict proof.

17. The 1st Defendant (Now Respondent) also states that the subject land was previously registered in the name of Muchiri Gachiri as Mau Summit/Molo Block 5/138 and the Plaintiff were occupying but it was not their land.

18. The 1st Defendant (Now Respondent) also stated that the land dispute case was filed in the year 2008 and the Plaintiffs participated in the Tribunal proceedings and continued to challenge the same at Molo Court in Land case number 40 of 2008 and in Judicial review number 7 of 2016.

19. The 1st Defendant (Now Respondent) stated that the land which the Plaintiffs have/had title to was originally registered as Summit/Molo Block 5/138 in the name of Muchiri Gachiri.

20. The 1st Defendant (Now Respondent), in his statement of defence, further stated that he has been deprived of his father’s inheritance and that efforts to file a succession proceeding were resisted by the Plaintiffs and in the process, they transferred the deceased assets to their names.

21. The 1st Defendant (Now Respondent) also stated that the decision arrived at the Tribunal and the adoption of the award at Molo Law Court was regular and that the court needed to uphold the said decisions.

22. The 1st Defendant (Now Respondent) stated that he has suffered more harm because the suit land herein was to be shared amongst the beneficiaries ofthe initial registered owner Muchiri Gachiri.

23. The 1st Defendant (Now Respondent) stated that the suit is a duplicate of the aforesaid proceedings therefore it should be dismissed with costs.

24. The Hon Attorney General filed a Memorandum of Appearance dated 15th July, 2019 on behalf of the 2nd Defendant (now Respondent) who is the Land Registrar Nakuru.

25. The 2nd Defendant (now Respondent) filed a Statement of Defence dated 29th July, 2019 and states that it was not a party to the Land Dispute Tribunal Proceedings.

26. The 2nd Defendant (now Respondent) also stated that it only dealt with the suit property in discharge of its legal mandate was done after exercise of due diligence with utmost honesty and in good faith.

27. The 2nd Defendant (now Respondent) listed the particulars of Statutory Duty of the 2nd Defendant asi.Issuing titles,ii.transferring proprietary rights of land in accordance to the documents filed in the registry,iii.Perusing and scrutinizing documents for transfer of land; andiv.correcting entries made fraudulently on record.

28. On 25th July, 2019, this Court made the following orders on an application:a.I grant prayer 2 of Notice of Motion dated 8th July, 2019. The orders to remain in force until the next date.b.The matter is hereby transferred to the Chief Magistrates Court for hearing and determination.c.The matter be mentioned on 8th August, 2019 before the Chief Magistrates Court to take a date for inter partes hearing of Notice of Motion dated 8th July, 2019. d.Mention Notice to issue.

29. Subsequently, the Deputy Registrar vide a letter dated 30th July, 2019 addressed to the Chief Magistrate Molo Law Courts forwarded a letter whose contents are as follows;“Forwarded herewith please our file E.L.C No 70 of 2019 which has been transferred to your division for hearing and determination as ordered by Hon. Justice D.O Ohungo on 25th July, 2019. Kindly acknowledge receipt and let us know the new number allocated to it.”

30. The Hearing commenced on 28th September, 2021 and The Learned Trial Magistrate delivered judgement on 15th March, 2022. It appears at page 24 of the Record of Appeal. It is as follows;“…It is indeed this cancellation that the Plaintiff seeks to have reversed and the two titles in their name restored in the green card. I do find it important to set out there otherwise undisputed facts as there lies the issue for this court’s determination that is, does this court have jurisdiction to grant the prayers sought? I have gone through the submissions by the counsel for the Plaintiffs and the 2nd Defendant and none has addressed the question of jurisdiction or raised it as an issue for determination. Jurisdiction is the authority which the Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute or constitution. Jurisdiction cannot be imposed by parties to a suit or dispute and not even by consent or agreement of the parties [Dan Maurice Hays vs County Government of Siaya (2021) eKLR]. In their Plaint, the Plaintiffs noted that the matter falls under the jurisdiction of this Court. The defence in their defence too conceded jurisdiction. That concession however as said cannot confer jurisdiction if the same is lacking.Now does this court have jurisdiction to grant the prayers being sought? I must answer this question in the negative. As already noted, the Plaintiffs are challenging decisions of the Land Dispute Tribunal and this court in adopting the award of the tribunal and issuing orders in execution of the resultant decree. It is the award, the decree that is adoption of the award and orders in execution that are being impugned.Remembering that the award by the Land Dispute Tribunal was made in 2008 and this and the adoption of the same were all done before the repeal of the Land Dispute Tribunal Act by the Environment and Land Court Act, Section 23 (3) of the Interpretation and General Provisions Act comes into play. (Emphasis is mine).It is the effect that the repeal of the Land Dispute Tribunal Act did not affect any rights, privileges or obligations acquired accrued or incurred…It is unless a contrary opinion was indicated. I have not come across any contrary opinion either in the Environment and Land Act or the Magistrate’s Court Act that grant the Magistrate’s Court jurisdiction to hear land and environment matter.The rights of the 1st Defendant had by the award and the resultant decree upon adoption had crystalized prior to the repeal of the Land Dispute Tribunal Act. An award had been made and the same adopted as a judgment of the court. The land dispute tribunal act provided avenues for challenging the award. Those avenues do not include filing a fresh suit in the Magistrate’s Court to set aside the award and decree. The Plaintiff if dissatisfied ought to have appealed before the Provincial Appeals Committee and thereafter to The Environment and Land Court… (Emphasis is mine)…The jurisdiction to overturn decisions of land dispute tribunal or the Magistrate’s court thus lies with the Environment and Court Act. That jurisdiction cannot be transferred to this court by being clothed in a fresh suit. This court cannot make orders whose effect is to revise the award of the tribunal or overturn the decree issued on adoption otherwise than through application for review. The suit before me is not an application for review. Consequently,I do find that this court lacks jurisdiction to grant the prayers sought and strike out the suit as a result. The parties herein being siblings each shall bear own cost.” (Emphasis is mine)

31. On 21st February, 2023 the appeal was admitted to hearing and directions given that the appeal shall be heard by way of written submissions.

32. On 23rd March, 2023 the Appellants confirmed having filed his submissions. Counsel for the Appellant stated that the 1st Respondent was served but never responded while the 2nd Respondent was present during the last court date but had not served them with their submissions.

33. The matter was then reserved for judgement.

Submissions. 34. The Appellants filed submissions dated 24th February, 2023 while the Respondents did not file any submissions.

35. The Appellants submit that the Appeal is against the decision of the Honorable Magistrate in Molo CMCC ELC Case No. 58 of 2019 which matter was heard by parties testifying in Court and when the matter came for judgment the Court pronounced itself that it had no Jurisdiction to hear the suit and it was struck out.

36. The Appellants submit that it is on the basis of their dissatisfaction with the Judgment delivered on the 15th March, 2022 that they have now filed this Appeal.

37. The Appellants submit that they join the four grounds of Appeal and submit that it is trite that jurisdiction of the Court is invoked by the plaintiff by filing a suit to seek justice. They go on to submit that they invoked the jurisdiction of the Environment and Land Court in Nakuru when they filed the suit ELC 70 of 2019 on the 9th July, 2019.

38. They further submit that the when the matter came up before the judge, he gave an order transferring the suit to the Chief Magistrates Court in Molo for determination.

39. The Appellants submit that the Hon Magistrate needed to satisfy herself that she indeed had the requisite jurisdiction to hear and determine the matter at the onset and if not to down her tools and not proceed further.

40. They further submitted that the question of jurisdiction must have been raised at the earliest of opportunity. They cite the decision in Owners of the Motor Vessel “Lilian S”vsCaltex Oil (Kenya) Ltd (1989) eKLR.

41. The Appellants go on to submit that had the Trail Magistrate addressed herself on the matter of jurisdiction at the onset, striking out the suit would have been averted seeing that the Appellants had not instituted the matter in the lower court but for the transfer. The Appellants rely on the decision in Harun Kiptarus Tanui Vs East African Portland Cement Plc (2022) eKLR wherein the court cited with approval the decision in John Mwangi Karanja Vs Alfred Ndiangui (2011) eKLR.

42. The Appellants submit that the trial court in its judgement remarked that neither of the parties had raised an issue with jurisdiction of the court. They submit that jurisdiction of the court is discerned from the pleadings as filed by the parties.

43. It is the Appellants submission that in the instance case the Plaintiffs filed the suit in the High Court (sic) a fact that the Trial Magistrate ought to have embraced therefrom. They further submit that they filed their suit in the right forum from the word go and if there was an error in transferring the suit in the lower court, that should not have been meted on the Appellants by striking it out.

44. It is the Appellants submission that striking out the suit on the basis of lack of jurisdiction would mean for the Appellants to file a fresh suit whereas the same was filed right and in good faith. The Appellants rely on the decision in Pamoja Women Development Program & 3 othersvsJackson Kihimbu Wangombe & Another (2016) eKLR as cited with approval in Henry Kigen & 6 others VS Baringo County Governor & 2 others (2020) eKLR.

45. The Appellants submit that they acted in good faith by filing the suit in the correct forum ab initio and that there was no justifiable reason for the trial court to strike out the suit on basis of no jurisdiction after hearing the matter to its conclusion.

46. It is the Appellants submission that there was a miscarriage of justice which can be remedied by this Appeal. The Appellants prayed that the Honourable Court does find that the trial court erred in not addressing itself to the issue of jurisdiction at the onset when the matter was transferred to the Lower Court and subsequently striking it out.

47. The Appellants pray that the Appeal be allowed and an order reverting the suit to the ELC High Court be issued.

Analysis and Determination. 48. Although the Appellant raised four grounds of appeal, he urged them together.

49. The single issue for determination is;Whether the learned Trial Magistrate erred in finding that she had no jurisdiction to determine the suit and thus struck it out.

50. The Black’s Law Dictionary, 11th Edition, defines Jurisdiction as a court’s power to decide a case or issue a decree.

51. In Owners of the Motor Vessel ‘Lillian S’ Vs Caltex Oil (Kenya) Ltd [1989] eKLR, the Court of Appeal had the following to say 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.” (Emphasis mine)

52. The appellants take issue with the fact that the Learned Magistrate raised the question of jurisdiction in her judgement and after hearing of the suit. This court finds that a finding on jurisdiction can be raised at any stage of the proceedings though it is best raised at the earliest opportunity.

53. In National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR) (3 February 2023) (Judgment) it was stated,“We start our determination by stressing that jurisdiction is a threshold matter which goes to the competence of the court to hear and determine a suit. Jurisdiction can be raised at any stage of the proceedings in the High Court, on appeal and even in the Supreme Court for the first time. It can be raised by any of the parties or by the court, and once raised the court would do well to examine it and render a considered ruling on it. (Emphasis mine)

54. The Learned Trial magistrate recognized, and stated in her judgement that the limits on jurisdiction are imposed by either statute or by the Constitution. She went on to state that consent of parties to a suit cannot confer jurisdiction on a court. Consequently, the submissions by the appellants that both them and the respondents admitted, in their pleadings, that the court had jurisdiction cannot hold.

55. The second issue, still hinged on jurisdiction was the finding by the magistrate that the court (the Magistrates court) was functus officio after it adopted the award of the Land Disputes Tribunal and went on to pronounce itself on the proper procedure after it adopted the award of the Land Disputes Tribunal as an order of the court.

56. The Learned Trial magistrate was of the view that the Plaintiff (now Appellant) if dissatisfied ought to have appealed before the Provincial Appeals Committee and thereafter to The Environment and Land Court. She stated thus;“An award had been made and the same adopted as a judgment of the court. The land dispute tribunal act provided avenues for challenging the award. Those avenues do not include filing a fresh suit in the Magistrate’s Court to set aside the award and decree. The Plaintiff if dissatisfied ought to have appealed before the Provincial Appeals Committee and thereafter to The Environment and Land Court…The jurisdiction to overturn decisions of land dispute tribunal or the Magistrate’s court thus lies with the Environment and Court Act. That jurisdiction cannot be transferred to this court by being clothed in a fresh suit. This court cannot make orders whose effect is to revise the award of the tribunal or overturn the decree issued on adoption otherwise than through application for review. The suit before me is not an application for review. Consequently, I do find that this court lacks jurisdiction to grant the prayers sought and strike out the suit as a result. The parties herein being siblings each shall bear own cost.”

57. In Christopher Wafula Mutoro -vs- Richard Lordia Lokere [2017] eKLR the Court held thus;“Parliament duly enacted the Environment and Land Court Act which in Section 13 (1) gives the Court original and appellate jurisdiction to hear and determine all land disputes. The ELC Act repealed the Land Disputes Tribunal Act which had created administrative tribunals to hear and determine certain types of land disputes. It follows that in the absence of the Land Disputes Appeal Committee before which the appellant’s appeal was pending, the ELC has jurisdiction to hear and determine the appeal. (Emphasis is Mine). Fourthly, as section 23 (3) of the Interpretation and the General Provisions Act provides, the repeal of the Land Disputes Tribunal Act did not affect its previous operations or anything done under it nor affect a right, privilege, obligation or liability acquired, accrued or incurred under it unless a contrary intention appears. The ELC Act does not convey a contrary intention. That means, amongst other things, that the appellant was entitled to pursue his right to appeal which had accrued under the repealed Act before a competent Court.”

58. The Learned Trial Magistrate correctly pointed out that the limits of jurisdiction are imposed by the statute or constitution.

59. Article 169 (1) (a) establishes the Magistrates courts amongst other subordinate courts. Article 169 (2) gives parliament the powers to enact legislation to confer jurisdiction and functions and powers on the courts established under Article 169 (1).

60. Section 9 (a) of the Magistrate’s Court Act, 2015 confers Magistrate jurisdiction to deal with environment and land matters subject to their pecuniary jurisdiction under section 7 (1) of the Act.

61. Section 9(a) of the Magistrate’s court provides confers jurisdiction upon the magistrate courts in the following terms;“A Magistrate’s court shall –a.in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (Cap. 12A) and subject to the pecuniary limits under section 7(1), hear and determine claims relating to –i.environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; compulsory acquisition of land;(iii)land administration and management;(iv)public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(v)environment and land generally”.

62. Section 26 of the Environment & Land Act provides;(3)The Chief Justice may, by notice in the Gazette, appoint certain magistrates to preside over cases involving environment and land matters of any area of the country.(4)Appeals on matters from the designated magistrate's courts shall lie with the Environment and Land Court

63. In the case of Patrick Ndegwa MunyuavsBenjamin Kiiru Mwangi & another [2020] eKLR, it was held that;“The upshot of the provisions at Section 26 (3) and (4) of the Environment and Land Court Act, 2011 and Section 9 (a) of the Magistrates’ Courts Act, 2015 is that magistrates who are duly gazetted and have the requisite pecuniary jurisdiction have jurisdiction and power to handle cases involving occupation of and title to land. Claims in the nature of adverse possession involve title to land since the claimant ultimately seeks an order that he be registered as the proprietor of the land. … In view of the foregoing discourse, there are ample reasons based on the express provisions of Section 26 (3) and (4) of the Environment and Land Court Act, 2011 and Section 9 (a) of the Magistrates’ Courts Act, 2015, the principles of interpretation of the constitution as well as the principles of the constitution such as devolution, access to services and access to justice for all persons, to find as I hereby do, that so long as presided over by a magistrate who is duly gazetted under Section 26 (3) of the Environment and Land Court Act, 2011 and who has the requisite pecuniary jurisdiction, magistrates’ courts have jurisdiction and power to handle cases involving claims of adverse possession.”

64. The Learned Judge well aware that the Magistrates court had jurisdiction to resolve the dispute transferred the suit to it. At the time of transfer, there was no opportunity for the judge to interrogate facts and evidence in the manner that the magistrate did so as to reach the finding that she did.

65. The Learned Judge in Zedekiah M Mwale Vs. Bikeke Farm Directors & Another Kitale HCCA No. 25 of 1998 cited with approval the decision in Republic Vs Resident Magistrate - Muranga & another Ex-parte Mary Wanja Kioga [2016] eKLR where the Court held that a magistrate has no jurisdiction to alter, amend, set aside, review or in any other manner interfere with a Land Disputes Tribunal’s award filed in court as section 7(2) only compels the magistrate to adopt it and it matters not how repugnant or unjust the magistrate may deem the award to be.

66. Similarly, in Peter Ouma Mitaivs. John Nyarara Kisii HCCA No. 297 of 2005, the Learned Judge held thus;“The jurisdiction of the Land Disputes Tribunal is clearly set out in section 3 of the Land Disputes Tribunal Act. Once a Tribunal has determined a dispute, section 7(1) of the Act requires the Chairman to cause the decision to be filed in the magistrate’s court together with any depositions or documents which have been taken or proved before the Tribunal…. (Emphasis is mine). The provisions of section 7(2) of the Act are explicit as to what has to be done by the magistrate’s court. That provision of the law does not leave any room for a magistrate to review, alter, amend or set aside the Tribunal’s award. In any of the parties are aggrieved by the said award they can either prefer an appeal to the Appeals Committee as provided under section 8(1) of the Act or if there are reasonable grounds for challenging the decision by way of a judicial review application, proceed to institute such proceedings before the High Court and not otherwise.” (Emphasis is mine).

Disposition 67. In the result, I find that the Trial Magistrate correctly found that the court lacked jurisdiction to entertain the suit as it had already adopted the award of the Land Disputes Tribunal and issued a decree.

68. The Learned Magistrate correctly found that the avenues for challenging an award f the Tribunal not include the filing of a fresh suit to set aside such award. Further, she correctly found that the Plaintiffs, if dissatisfied with the award, ought to have filed an appeal before the Provincial Appeals Committee or to the Environment and Land Court.

69. Consequently, the appeal is hereby dismissed with no order as to costs.

70. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 27TH DAY OF SEPTEMBER, 2023. L. A. OMOLLOJUDGEIn the presence of:Mr. Ikua for Kimure for the Appellants.No appearance for the 1st Respondent.No appearance for the 2nd Respondent.Court Assistant: Monica Wanjohi.