[2025] KEHC 3460 (KLR)

Mwangi v Nyokabi & 3 others (Environment and Land Appeal E430 of 2023) [2025] KEHC 3460 (KLR) (6 February 2025) (Ruling)

Neutral citation: [2025] KEHC 3460 (KLR)

Republic of Kenya

In the High Court at Kiambu

Environment and Land Appeal E430 of 2023

DO Chepkwony, J

February 6, 2025

Between

Virginia Wambui Mwangi

Appellant

and

Simon Njoroge Nyokabi

1st Respondent

George Kamau Nyokabi

2nd Respondent

Henry Njogu Nyokabi

3rd Respondent

Anthony Njogu Nyokabi

4th Respondent

Ruling

1. What is before this Court for determination is the Notice of Motion application dated 15th January, 2024 seeking the following orders:-a.Spent.b.Spent.c.That the Honourable Court be pleased to stay the aforesaid Judgment/Decree pending the hearing and determination of the appeal herein.d.That the costs of this application be provided for.

2. The Application is based on the grounds set out on its face and the Supporting Affidavit of Virginia Wambui Mwangi sworn on 15th January, 2024. According to the Applicant, she filed an appeal in respect of the Judgment delivered in Kikuyu ELC No.E002 of 2022 and she avers that if stay is not granted, she stands to suffer irreparable loss as the subject parcel of land may be transferred, alienated or sold by the Respondents. She prays that the application be allowed.

3. The Respondents opposed the application through a Notice of Preliminary Objection dated 2nd February, 2024 on the basis that this Honourable Court lacks the jurisdiction to hear and determine the matter since the dispute revolves around land.

Analysis and Determination 4. In determining the application dated 15th January, 2024, I have read through the material placed before me and find that the issues that arise for determination are:-a.Whether the Preliminary Objection raised herein has merit.b.Whether this Court has jurisdiction to hear and determine the appeal herein in the form and manner it has been filed.c.Who bears the costs of these proceedings.

5. The Respondent having raised a Preliminary Objection, this Court finds that it shall first address the same because as noted by the court in the case of Pius Kamau Kinuthia –vs- David Mueithi Kanyi & Another (Environment & Land Case No.E007 of 2023)[2024] KEELC 1625 (KLR) that:-“A Preliminary Objection rests on the proposition that when raised, its fundamental accomplishment will have a bearing on disposing of a matter because it raises pure points of law. It also underscores the need for prudent management of time as a court resource by summarily flagging out a frail and hopeless suit that if admitted to full trial, will be a wash of judicial time and will not serve the interest of justice. One will not be required to look elsewhere to find an answer as to whether a Preliminary Objection is sustainable or not, but to look at the pleading and discover that the suit is a non-starter.

6. On what a Preliminary Objection is, the case of Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors (1969) EA 696 held 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”.In the same case Sir Charles Newbold, P. stated:-“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.

7. The Supreme Court in the case of Independent Electoral & Boundaries Commission –vs- Jane Cheperenger & 2 Others[2015]eKLR made the following observation with regard to Preliminary Objections:-“The true Preliminary Objection serves two purposes of merit; firstly, it serves as a shield for the originator of the Objection against profligate deployment of time and other resources. And secondly, it serves the public cause of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the Preliminary Objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits”.

8. In this particular case, the Preliminary Objection raised is on account of this court’s jurisdiction to entertain the matter since the dispute revolves around land. It is trite that in every case or mater before court, the starting point for any court is to establish whether or not it has jurisdiction to hear and determine the same. This is because without jurisdiction, the court has to down its tools. This was stated in the classic case of The Owners of the Motor Vessel “Lillian S” -vs- Caltex Oil (Kenya) Ltd (1989) KLR 1, where Nyarangi J.A. held as follows:-“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. 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.'

9. It is also trite that a court derives its jurisdiction either from the Constitution or statute or both. This is the decision by the Supreme Court of Kenya in the case of Samuel Kamau Macharia –vs- KCB & 2 Others, Civil Application No. 2 of 2011, where it was stated that:-“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”

10. In this particular case, the Plaintiff sued the Defendants vide a Plaint dated 17th January, 2022, basically for trespass and wanton destruction on Land Parcel No.Karai/Lussigiti/T.958. The Defendants on the other hand filed a counter-claim dated 10th May, 2023 against the Plaintiff seeking a declaration that they be registered as the proprietors of all that parcel of land known as Karai/Lussigiti/T.958 and for the Plaintiff to be restrained from trespassing on the said suit property. It is form the Judgment thereof that the instant application emanates.

11. A plain reading of the prayers sought by either party(ies) clearly shows that the dispute between them revolves around land and their respective claim on the right to use the said property.

12. I have also taken note of the title heading of the suit before the trial court and the appeal. Before the trial Court, the suit was titled;“In the Senior Principal Magistrate’s Court at Kikuyu ELC No.E002 of 2022”.The Appeal is titled;“In the Environment and Land Court at Kiambu, ELC Appeal No.430 of 2023”.

13. From these titles, it is clear that the Applicant recognises or has knowledge of her case as being within the purview of the Environment and Land Court. Furthermore, it is worth-noting that in this region, the Environment and Land Court is not based in Kiambu Law Courts. It is based at the Thika

Law Courts. 14. It is trite that all disputes relating to the Environment and Land are a preserve of the Environment and Land Court which is an establishment of Article 162(2) of Constitution that provides as follows:-162. (2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—a.……b.the environment and the use and occupation of, and title to, land.

15. Section 13(2)(e) of the Environment and Land Court Act outlines the jurisdiction of the Environment and Land Court in the following terms:-(1)…(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 interest in land; ande)Any other dispute relating to environment and land.

16. In view of this, the Environment and Land Court, and which is not based at Kiambu but at Thika, will be the proper forum for the parties to ventilate their issues on appeal in the matter.

17. Having found as hereinabove, this Court lacks jurisdiction to entertain this matter and therefore, downs its tools at the earliest. The question therefore becomes, can this Court transfer the appeal to the proper forum for hearing and determination? In the case of Phoenix of E.A. Assurance Company Limited –vs- M. Thiga T/A Newspaper Service[2019]eKLR, the Court held as follows:-“We are not persuaded that proposition by the Respondent as correct in law. Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the court cannot confer jurisdiction to itself”.

18. And in the case of Equity Bank Limited –vs- Bruce Mutie Mutuku T/A Diani Tour Travel [2014]eKLR, the court had this to say:-“In numerous decided cases, courts, including this Court, have held that it would be illegal for the High Court in exercise of its powers under Section 168 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction, and therefore sanctify an incompetent suit. This is because no competent suits exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow a court to transfer an incompetent suit for want of jurisdiction to a competent court, would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the oxygen principle or the overriding objective under the Civil Procedure Act, the Appellate jurisdiction Act or even Article 159 of the Constitution, to remedy the same…… In same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through transfer”.

19. In conclusion, this Court finds the Notice of Preliminary Objection dated 2nd February, 2024 has merit and allows the same. As a result of this, the application and the entire appeal filed herein are hereby struck out with costs to the Respondent.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 6TH DAY OF FEBRUARY, 2025. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Ngure counsel for AppellantNo appearance by and for RespondentsCourt Assistant - Martin