[2024] KEHC 13808 (KLR)
The High Court is expressly barred by Article 165(5)(b) of the Constitution from hearing and determining disputes relating to environment and land. The proper appellate forum for such matters, including applications for leave to appeal out of time or for stay of execution, is the Environment and Land Court as...
Source-derived case information.
- Citation
- [2024] KEHC 13808 (KLR)
- Parties
- Applicant: Peter Ochieng Opiyo; Respondent: Joel Obonyo Nyakwaka; Respondent: Charles Ondu Deya; Respondent: Elizabeth Julia Ndunge; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E357 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time And/or Stay of Execution
- Outcome
- application struck out for want of jurisdiction
- Judges
- RE Aburili
- Legal Topics
- Jurisdiction of High Court, Environment and Land Court Jurisdiction, Leave to Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ochieng Opiyo
Applicant
Joel Obonyo Nyakwaka
Respondent
Charles Ondu Deya
Respondent
Elizabeth Julia Ndunge
Respondent
Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time And/or Stay of Execution
Legal Issues
- 1 Does the High Court have jurisdiction to hear and determine disputes relating to environment and land?
- 2 Can the High Court grant leave to appeal out of time or stay execution in a matter arising from the Environment and Land Court?
- 3 What is the proper appellate forum for decisions from the Magistrate's Court in environment and land matters?
Ratio Decidendi
The High Court is expressly barred by Article 165(5)(b) of the Constitution from hearing and determining disputes relating to environment and land. The proper appellate forum for such matters, including applications for leave to appeal out of time or for stay of execution, is the Environment and Land Court as established under Article 162(2)(b) of the Constitution and Section 13(1) of the Environment and Land Court Act. Since the application before the High Court arose from an environment and land dispute, the court lacked jurisdiction to entertain it. Jurisdiction is fundamental, and without it, any proceedings are a nullity. Consequently, the application was struck out for want of...
Court Disposition
application struck out for want of jurisdiction
Orders
- The application dated 4th November 2024 is struck out for want of jurisdiction.
- No orders as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
Opiyo v Nyakwaka & 3 others (Miscellaneous Civil Application E357 of 2024) [2024] KEHC 13808 (KLR) (7 November 2024) (Ruling)
Neutral citation: [2024] KEHC 13808 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Civil Application E357 of 2024
RE Aburili, J
November 7, 2024
Between
Peter Ochieng Opiyo
Applicant
and
Joel Obonyo Nyakwaka
1st Respondent
Charles Ondu Deya
2nd Respondent
Elizabeth Julia Ndunge
3rd Respondent
Attorney General
4th Respondent
Ruling
1. The application dated 4th November 2024 filed under certificate of urgency is not certified urgent.
2. On the substance thereof, from the letter of 7th October 2024 addressed to Maseno Law Courts, it is clear that the matter giving rise to this intended appeal is an Environment and Land Court matter.
3. This court is aware of the Constitutional bar at Article 165 (5) (b) which expressly bars the court from hearing and determining disputes relating to environment and land.
4. I am aware that Magistrate’s courts are conferred with jurisdiction to hear and determine disputes relating to Land and Environment. It follows that any party aggrieved by the decision of the Magistrate’s court can only file an appeal before the superior court established under Article 162 (2) (b) of the Constitution. That court is Environment and Land Court, which has jurisdiction to hear such disputes both as a trial court and as an appellate court as stipulated in Section 13(1) of the Environment and Land Court Act.
5. In the end, as this court’s jurisdiction does not include the hearing and determining disputes relating to Land and Environment, and as jurisdiction is everything, without which, a court of law acts in vain. For want of jurisdiction, this Court cannot attempt to hear and determine this application seeking leave to appeal out of time and or stay of execution of decree in Maseno SPM ELC No. 57 of 2018.
6. Accordingly, the application dated 4th November 2024 is struck out for want of jurisdiction.
7. I make no orders as to costs.
8. The Registry to notify the applicant’s counsel forthwith.
9. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 7TH DAY OF NOVEMBER, 2024. R. E. ABURILIJUDGE