[2022] KEHC 26929 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

IN THE CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NUMBER E002 OF 2021

IN THE MATTER OF:

ARTICLES 2, 10, 19, 20(1), (2), 21, 22, 23, 25, 28, 29, 40, 47(1), 48, 60(1)(b), 73, 159, 165, 258,

AND 260 OF THE CONSTITUTION OF KENYA (2010)

AND

IN THE MATTER OF:

LEADERSHIP AND INTEGRITY ACT NO. 19 OF 2012

AND

IN THE MATTER OF:

THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015

AND

IN THE MATTER OF:

AN APPLICATION FOR PROTECTION OF THE PETITIONER’S

RIGHT TO ACQUIRE, OWN, AND POSSESS PROPERTY

PETER MUGAMBI MUCHEKE .......... PETITIONER/APPLICANT

VERSUS

DISTRICT CRIMINAL INVESTIGATION

OFFICER (DCIO) CHUKA........................................1ST RESPONDENT

HON. JAPHET MIRITI KAREKE MBIUKI.........2ND RESPONDENT

HON. WILSON NYAGAH DEREBIA ...................3RD RESPONDENT

R U L I N G

Background

1. The Petitioner herein instituted this suit vide a Petition dated 21st June 2021. Contemporaneous with the filing of the suit he filed an application seeking interim orders restraining the Respondents from directly or indirectly evicting, preventing from entering, interfering with or undermining the quiet and peaceful enjoyment by the Petitioner of the following properties:

a.Title Numbers Muthambi/L. Kandungu/26; 591; 607; 610; 623; and 1116;

b.Title Numbers Muthambi/L. Lower Kandungu/593; 595; 596; 600; 601; 613; 619; 620; 987; 991; 1011; and 1323;

c.Title Numbers Meru South/Lower Kandungu/ 551; 592; 594; 598; 604; 605; 606; 996; 1001; 1055; 1097; 1324; 1360; and 1374.

2. The application is based on the grounds that he is the registered owner of various parcels of land which he has listed in the petition and the affidavit. He has deponed that he has annexed the title deeds but there are no annextures to the affidavit in support of the application. That he is the sole proprietor of the said parcels of land whose rights protected under the Constitution. The petitioner states that the 2nd respondent has on several occasions directed the 1st respondent to investigate the petitioner concerning the title deeds to the said parcels of land. The petitioner further alleges that the 3rd respondent has on several occasions mobilized mobs to drive out workers out of his farms. He contends that the actions by the respondents are unlawful and have interfered with his right to possession and enjoyment of his properties. He urges this court to come to his aid restrain the respondents by themselves , their agents, employee and agents from directly or indirectly evicting, preventing him from entering the properties and from interfering with his quiet enjoyment of the afore listed properties

3. The Application is expressed to be brought under the provisions of Articles 22, 23 and 165 of the Constitution and Rules 4, 13, 19, and 23of the Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules of 2013.

4. This court certified the Application as urgent in the first instance. The 1st Respondent responded to the Application vide a Replying Affidavit sworn on 30th June 2021 by Julius Kasiwai, the Director of Criminal Investigation Meru South Sub County. The said Julius Kasiwai deponed that the office of the 1st Respondent was wrongly enjoined in this matter.

5. On the other hand, 2nd Respondent opposed the Application vide the Replying Affidavit he swore on 7th July 2021 while the 3rd Respondent swore an affidavit on 7th July 2021 in opposition to the Petition only.

6. On 1st November 2021, this court ordered that the Application be disposed of by way of written submissions. As of 14th December 2021, when the matter came up to confirm the filing of the submissions by the parties, the Petitioner had not filed his written submissions. To date, the Petitioner and the 1st Respondent are yet to comply with the order to file submissions. On the other hand, the 2nd and 3rd Respondents filed their joint written submissions on 14th December 2021.

7. I have considered the Application, the affidavits sworn in support and in opposition of the Application as well as the submissions of the 2nd and 3rd Respondents. In my view, the main issues arising for determination by this court are:

a.Whether this court has the requisite jurisdiction to deal with the issues raised; and if so,

b.Whether the Notice of Motion Application dated 21st June 2021 is merited.

Analysis

8. It is trite that jurisdiction is everything and without it the court must down its tools. [See: Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR]

9. The Supreme Court of Kenya pronounced itself as follows on the issue of the jurisdiction of a court:

“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court 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. Bearing the above principles in mind, it follows that this court should first address the question raised by the 2nd and 3rd Respondents on whether it is clothed with the requisite jurisdiction to determine the issues in regard to land as raised by the Applicant.

11. The Applicant states that he is registered owner of the several parcels of land listed herein above. It is the Applicant’s contention that the 2nd Respondent has on several occasions directed the 1st Respondent to investigate the Petitioner concerning ownership of the title deeds to the said parcels of land. The Petitioner further contends that the 3rd Respondent has on several occasions mobilized mobs to drive workers out of his farms.

12. Section 13 of the Environment and Land Court Act No. 19 of 2011provides for the jurisdiction of the Environment and Land Court as follows:

“(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.

(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 interests in land; and

(e) any other dispute relating to environment and land.”

13. It is important to look at the provisions of Article 162(2) (b) of the Constitution under which the jurisdiction of the Environment and Land Court is derived. The Article provides:-

Article 162(2) (b) of the Constitution here.

“(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to

(b) the environment and the use and occupation of, and title to, land.”

Under the Article, Parliament was mandated is (was) mandated to determine the jurisdiction and functions of the courts contemplated under clause (2)

The pre-amble to Environment and Land Court Act No.19/2011 states as follows:

“An Act of Parliament to give effect to Article 162(2)(b) of the Constitution to establish a superior court to hear and determine disputes relating to the environment and use and use and occupation of the title to land, and to make provision for its jurisdiction functions and powers, and for connected purposes.”

This jurisdiction is given under Section 13 of the Act, (Supra). It was intended by Parliament that all disputes touching on land and environment matters shall be heard and determined in courts established under the Act.

Under Article 165(5)(b) of the Constitution which establishes the High Court, it expressly stated that –

“ The High Court shall not have jurisdiction in respect of matters-

“Falling within the jurisdiction of the courts contemplated in Article 162(2).”

There is no jurisdiction conferred by the Constitution or by Legislation on the High Court to hear and determine mattes touching on land and Environment. The court with jurisdiction is the Environment and land Court. The High Court cannot arrogate jurisdiction on itself which has not been conferred by the Constitution or Other written Law.

It is trite that when an issue of jurisdiction is raised, the court must determine whether it has jurisdiction. This is in line with the holding in the celebrated case of Owners of Motor Vessel Lillian ‘S’ –V- Caltex Oil (Kenya) Ltd (Supra). This principle was also the holding in the case of Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited (1969) E.A 696 where it was stated that “so far as I am aware a pre-liminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleading and which if argued as a preliminary point may dispose off the suit.”

The court went ahead and gave an example of the issue of jurisdiction raised as a pre-liminary point.

From the pleadings, the petitioner is seeking an order for restitution of the land in several titles to himself unconstitutionally appropriated by the respondent, their servants, agenda and or employees and any other person actin on their direction an injunction restraining them from interfering with the ownership, possession and use of the land comprised in the said titles. These among other prayers is what the petitioner is seeking and has moved the court vide a notice of motion to issue a temporary injunction pending the hearing and determination of the petition.

14. The counsel for the 2nd and 3rd respondent submits that the court lacks jurisdiction as the petition hinges principally on matters related to management and usage and determination of right to land. He relies on the case of Chimweli Jangaa & 3 Others- V- Hamisi Mohamed Mwawasaa & 15 Others (2016) eKLR,C.A where it was stated:

“The Constitution has therefore created a specific court, with equal status to the High Court and conferred on it the jurisdiction to hear and determine disputes relating to, among others, use, occupation, title to land and “any other dispute relating to land.” It cannot gainsaid that when the Constitution has created a specific mechanism for redress of particular grievances, that mechanism must be resorted to….Accordingly, where issues involving the environment or land raise constitutional issues or issues of protection and enforcement of the right to land as property, the ELC will have jurisdiction to hear and determine the dispute. We are satisfied that the appellant’s claim that the ELC lacks jurisdiction to enforce constitutional rights to totally bereft or merit.”

It is clear from the above provisions that the Constitution and the relevant statute has established a mechanism for resolution of disputes touching on land which is clearly not this court. A party seeking redress must file the dispute in the court with jurisdiction in order to avoid unnecessary expenses which arise as a consequence of filing the dispute in the wrong forum as well as save judicial resources and time.

There is no doubt in this petition the proper forum with the requisite jurisdiction to handle the dispute is the Environment and Land Court which is envisaged under Article 162(b) of the Constitution and Section 13 of the Environment and Land Court Act (No.9/2011). This court can therefore not make any one move and must down its tools. This court lacks jurisdiction to determine the application or issue injunctive orders as well as the petition.

The application fails for want of jurisdiction and is dismissed with costs.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 10TH DAY OF FEBRUARY, 2022.

L.W. GITARI

JUDGE

10/2/2022

The ruling has been read out in open court.

L.W. GITARI

JUDGE

10/2/2022