[2024] KEHC 5709 (KLR)
The High Court lacks jurisdiction to hear and determine disputes relating to land use and planning, as such matters are expressly reserved for the Environment and Land Court by Article 165(5)(b) of the Constitution and the Physical Planning and Land Use Planning Act No. 13 of 2019. The court cannot arrogate...
Source-derived case information.
- Citation
- [2024] KEHC 5709 (KLR)
- Parties
- Applicant: Moses Owino Opiyo; Applicant: Bonny Ojwang' Abwaku; Applicant: Bonny Cowino Anin; Respondent: Cabinet Secretary, Ministry of Land, Public Works, Housing and Urban Development; Respondent: Chairman National Land Commissioner; Respondent: Chief Land Registrar; Respondent: Director General, Physical Planning; Respondent: Permanent Secretary, Ministry of Devolution; Respondent: Chairman, Council of Governors; Respondent: National Director of Survey; Respondent: The Hon. Attorney General; Respondent: Institution of Surveyors of Kenya
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition E012 of 2023
- Procedural Posture
- Constitutional Petition / Ruling on Jurisdiction
- Outcome
- Petition struck out for want of jurisdiction.
- Judges
- RE Aburili
- Legal Topics
- Jurisdiction of Courts, Environment and Land Court Mandate, Land Use Planning, Constitutional Bar on Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Moses Owino Opiyo
Applicant
Bonny Ojwang' Abwaku
Applicant
Bonny Cowino Anin
Applicant
Cabinet Secretary, Ministry of Land, Public Works, Housing and Urban Development
Respondent
Chairman National Land Commissioner
Respondent
Chief Land Registrar
Respondent
Director General, Physical Planning
Respondent
Permanent Secretary, Ministry of Devolution
Respondent
Chairman, Council of Governors
Respondent
National Director of Survey
Respondent
The Hon. Attorney General
Respondent
Institution of Surveyors of Kenya
Respondent
Procedural Posture
Constitutional Petition / Ruling on Jurisdiction
Legal Issues
- 1 Whether the High Court has jurisdiction to hear and determine disputes relating to land use and planning under the Physical Planning and Land Use Planning Act No. 13 of 2019.
- 2 Whether the petition should be transferred to the Environment and Land Court or struck out for want of jurisdiction.
Ratio Decidendi
The High Court lacks jurisdiction to hear and determine disputes relating to land use and planning, as such matters are expressly reserved for the Environment and Land Court by Article 165(5)(b) of the Constitution and the Physical Planning and Land Use Planning Act No. 13 of 2019. The court cannot arrogate jurisdiction to itself nor can parties confer it by consent. Since the petition was filed well after the transitional period following the 2010 Constitution, and the jurisdiction of the Environment and Land Court is clear, the High Court must strike out the petition for want of jurisdiction rather than transfer it. The court's only lawful course is to decline jurisdiction and strike...
Court Disposition
Petition struck out for want of jurisdiction.
Orders
- The petition is struck out in its entirety for want of jurisdiction.
- No orders as to costs.
Full Case Text
Judgment text and source record
47 paragraphs
Opiyo & 2 others v Cabinet Secretary, Ministry of Land, Public Works, Housing and Urban Development & 7 others; Institution of Surveyors of Kenya (Interested Party) (Petition E012 of 2023) [2024] KEHC 5709 (KLR) (22 May 2024) (Ruling)
Neutral citation: [2024] KEHC 5709 (KLR)
Republic of Kenya
In the High Court at Kisumu
Petition E012 of 2023
RE Aburili, J
May 22, 2024
Between
Moses Owino Opiyo
1st Petitioner
Bonny Ojwang' Abwaku
2nd Petitioner
Bonny Cowino Anin
3rd Petitioner
and
Cabinet Secretary, Ministry of Land, Public Works, Housing and Urban Development
1st Respondent
Chairman National Land Commissioner
2nd Respondent
Chief Land Registrar
3rd Respondent
Director General, Physical Planning
4th Respondent
Permanent Secretary, Ministry of Devolution
5th Respondent
Chairman, Council of Governors
6th Respondent
National Director of Survey
7th Respondent
The Hon. Attorney General
8th Respondent
and
Institution of Surveyors of Kenya
Interested Party
Ruling
1. The Petition dated 14th December 2023 seeks orders which can only be granted by the Environment and Land Court. I need not reproduce here those prayers save to state that they relate to land use and planning, under the Physical Planning and Land Use Planning Act No. 13 of 2019.
2. That being the case, it is clear from the onset that this is a matter which squarely falls within the jurisdiction of Environment and Land Court and not the High Court.
3. Article 165 (5) (b) of the Constitution expressly bars the High Court from hearing and determining disputes which are exclusively in the jurisdiction preserved for the Environment and Land court, the Employment and Labour Relations Court and the Supreme Court.
4. This Petition was filed nearly 14 years after promulgation of the 2010 Constitution.
5. We are not in the transitional period where one would be mistaken to file a claim of one court into the other, especially where that person is represented by an Advocate of this Court.
6. That being the case, and for want of jurisdiction, what this court can do is no more than down its tools and say no more as jurisdiction cannot be arrogated by a court or be conceded to by parties but conferred by the Law and the Constitution.
7. On whether I should transfer the Petition to ELC, I hesitate to do so as the petition was not filed in the transitional period. The jurisdiction of the Environment and Land Court is apparent and the definition of court under the Physical Planning and Land Use Planning Act No. 13 of 2019 is the Environment and Land Court.
8. It follows that parties must, before instituting suits, first identify what court has jurisdiction before lodging their claims and straying in a court without jurisdiction only calls for the fiat of the court to decline jurisdiction which I have done.
9. Consequently, and for want of jurisdiction, this Petition as a whole is hereby struck out with no orders as to costs.
10. This file is closed.
11. I so order.
Dated, Signed and Delivered at Kisumu this 22nd Day of May, 2024R. E. ABURILIJUDGEPage 3 of 3