https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12739

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION CIVIL APPEAL NO. HCCA E174 OF 2024** **PATRIDE ENTERPRISES LIMITED......................................1ST APPELLANT DORCAS MONYENCHE MATOKE................................2ND APPELLANT NYAKUNDI WILSON MOKAYA.....................................3RD APPELLANT REGAL AUCTIONEERS...................................................4TH APPELLANT** **VERSUS** **LEOTA INVESTMENT LIMITED...................................1ST RESPONDENT LEVI ODUPOT TALENGO.........................................2ND RESPONDENT** ***(Being an appeal from the Ruling of Hon. C.A. Ogweno (Senior Resident Magistrate) delivered on 25th January 2024 in Milimani CMCC No. E4603 of 2023)*** **JUDGMENT** **Background** 1. This appeal arises from the ruling of the Chief Magistrate's Court dismissing the Appellants' Preliminary Objection challenging the jurisdiction of the subordinate court to entertain Milimani CMCC No. E4603 of 2023. 2. The dispute before the subordinate court arose out of a landlord and tenant relationship between the 1st Appellant, as landlord, and the Respondents, as tenants, in respect of residential premises known as House No. 120 erected on L.R. No. KIT/101/95A (120), Kitisuru. 3. Following a dispute over rent, the Appellants instructed the 4th Appellant to levy distress for rent. The Respondents subsequently filed suit seeking injunctive reliefs to restrain the distress, return of the distrained goods and damages for breach of the tenancy agreement arising from the alleged unlawful distress. 4. The Appellants raised a Preliminary Objection contending that the dispute related to the use and occupation of land and therefore fell exclusively within the jurisdiction of the Environment and Land Court (ELC). The learned Magistrate dismissed the objection, holding that the Magistrates' Court had jurisdiction. Aggrieved by the said decision, the Appellants lodged the present appeal. **The Appeal** 1. The appeal is premised on the grounds that the learned Magistrate erred in law by finding that the Magistrates' Court had jurisdiction to determine a dispute touching on land and by failing to follow binding precedent on the jurisdiction of the Environment and Land Court. **The Appellants' Case** 1. The Appellants submitted that the suit before the subordinate court was founded on a tenancy agreement relating to occupation and use of land and therefore fell within the exclusive jurisdiction of the Environment and Land Court established under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. 2. It was submitted that once the pleadings disclosed a dispute arising from a lease agreement and occupation of land, neither the Magistrates' Court exercising ordinary civil jurisdiction nor the High Court could entertain the matter. 3. Reliance was placed on ***Owners of the Motor Vessel "Lilian S" vs. Caltex Oil (Kenya) Ltd* [1989] KLR 1**, where Nyarangi JA famously held that jurisdiction is everything and without which a court must down its tools. 4. The Appellants further relied on the constitutional framework under Articles 162(2)(b) and 165(5) of the Constitution to submit that disputes relating to leases, rents and occupation of land fall within the mandate of the Environment and Land Court. **The Respondents' Case** 1. The Respondents support the ruling of the learned Magistrate. They submitted that although the dispute arose from a tenancy relationship, the suit was properly instituted before a designated Magistrates' Court exercising jurisdiction under the Magistrates' Courts Act and the Environment and Land Court Act. They contended that the Appellants misconstrued the law by assuming that only the Environment and Land Court can hear land-related disputes. 2. It was submitted that Section 9(a) of the Magistrates' Courts Act expressly clothes designated magistrates with jurisdiction to hear disputes relating to land, including disputes concerning rents, leases and occupation of land, subject to their pecuniary jurisdiction. Reliance was also placed on Sections 26(3), (4) and (5) of the Environment and Land Court Act, which confer jurisdiction upon designated magistrates and provide that appeals from such courts lie to the Environment and Land Court. The Respondents further cited ***George Mulama Wamukoya vs. Siprose Atieno Mulama & 2 Others* [2022] KEELC 1895 (KLR)** in support of the proposition that magistrates designated under the Act have jurisdiction over land disputes within their pecuniary limits. **Issues for Determination** 1. Having considered the Memorandum of Appeal, the Record of Appeal, the rival submissions and the applicable law, I find that the the main issue for determination is whether the learned Magistrate erred in finding that the subordinate court had jurisdiction to hear the suit. **Analysis and Determination** 1. The issue of jurisdiction is fundamental. In ***Owners of the Motor Vessel "Lilian S" vs. Caltex Oil (Kenya) Ltd* [1989] KLR 1**, the Court of Appeal held that jurisdiction is everything and that without it a court has no power to make one more step. Likewise, in ***Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Ltd & 2 Others* [2012] eKLR** the Supreme Court reiterated that a court's jurisdiction flows from the Constitution or statute and cannot be assumed or conferred by judicial craft. 2. The Appellants' argument was that because the dispute concerns a tenancy agreement, the Magistrates' Court lacked jurisdiction altogether. With due respect to the Appellants, I do not agree. 3. Article 162(2)(b) of the Constitution established the Environment and Land Court to hear disputes relating to the environment and the use, occupation of and title to land. Pursuant to Article 169 of the Constitution, Parliament enacted the Magistrates' Courts Act and the Environment and Land Court Act, which expressly confer jurisdiction upon designated magistrates to determine environment and land disputes within their pecuniary jurisdiction. 4. Section 9(a) of the Magistrates' Courts Act provides that a magistrate's court shall, in the exercise of jurisdiction conferred by Section 26 of the Environment and Land Court Act, hear and determine claims relating to land use, tenure, rents, leases and occupation of land, subject to the prescribed pecuniary limits. Further, Section 26(4) of the Environment and Land Court Act expressly authorizes designated magistrates to determine civil disputes involving occupation, title and interests in land, while Section 26(5) provides that appeals from such decisions lie to the Environment and Land Court. 5. The pleadings before the subordinate court reveal that the Respondents challenged the legality of distress for rent allegedly levied by the Appellants and sought injunctive reliefs, return of distrained goods and damages arising from the tenancy relationship. There is nothing on the record to suggest that the value of the subject matter exceeded the pecuniary jurisdiction of the Magistrates' Court or that the trial court was not a designated court under the statutory framework. 6. I find that the learned Magistrate therefore correctly appreciated that magistrates' courts are no longer divested of jurisdiction merely because a dispute relates to land. The law, as presently enacted, expressly permits designated magistrates to hear such disputes within the statutory limits. The Appellants' contention that only the Environment and Land Court could entertain the suit overlooks the clear provisions of Section 9 of the Magistrates' Courts Act and Section 26 of the Environment and Land Court Act. 7. I therefore find no error in the learned Magistrate's conclusion that the subordinate court was properly seized of the matter. It is therefore my finding that the Preliminary Objection was rightly dismissed. 8. The upshot is that the appeal is devoid of merit and is hereby dismissed with costs to the Respondent. **It is so ordered.** **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026** **HON W A OKWANY** **JUDGE**