[2022] KEHC 1848 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. E345 OF 2021

REVEREND PHILIP KITOTO (Sued as the

Secretary General and a registered Trustee

Of KENYA ASSEMBLIES OF GOD CHURCH)....... 1ST APPELLANT

PASTOR JOHN KARANJA WANJENGU (Sued

as the office bearer of Kenya Assemblies of God

Kariobangi River Bank Church) .............................. 2ND APPELLANT

VERSUS

SIMON KURIA WANYOIKE .................................. 1ST RESPONDENT

NAIROBI CITY COUNTY....................................... 2ND RESPONDENT

RULING

The 1st respondent filed a preliminary objection dated 29th September 2021 on the following points of law

1. The honorable court lacks jurisdiction to hear and determine the appeal dated 16th June 2021 and the appellants’ Notice of Motion application dated 8th September 2021 by dint of Article 162(2)(b) and 165(5)(b) of the constitution of Kenya 2010 as read with section 13(1)(2) & (4) of Environment and Land Court Act, 2012.

2. The honorable court has no appellate jurisdiction in respect to matters relating to the environment and the use and occupation of, and title to, land pursuant to provisions of Articles 162(2)(b) and 165(5)(b) of the Constitution of Kenya 2010 as read with sections 13(1)(2)&(4) of the Environment and Land Court Act 2012.

3. The Appellants Appeal dated 16th June 2021 and the Notice of Motion application dated 8th September 2021 offends mandatory provisions of Articles 162(2)(b) and 165(5)(b) of the Constitution of Kenya 2010 as read with section 13(1)(2)&(4) of the Environment and Land Court Act 2012.

4. The appeal dated 16th June 2021 and the Appellants’ Notice of Motion application dated 8th September 2021 are bad in law, misconceived incompetent incurably defective and a non-starter in law.

Counsel for the 1st respondent submitted that the court lacks jurisdiction to determine the appellants’ notice of motion dated 8th September 2021 and the appeal dated 16th June 2021. It was his argument that the judgement delivered by Hon. D. O. Mbeja in Milimani CMCC Case No. 5493 of 2018 determined the ownership of Plot No. 150 Kariobangi-Riverbank. The appellants are therefore seeking to have this court sit as an appellate court in respect to land ownership dispute which is a preserve of the Environment and Land Court as indicated under the provisions of Article 162(2)(b) of the Constitution of Kenya that provides;

162. (1) The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2).

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

(a) employment and labour relations; and

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

Further, Article 165(b) of the Constitution provides;

(5) The High Court shall not have jurisdiction in respect of matters:-

a. Reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or

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

Reference was made to Section 13 of the Environment and Land Court Act which states 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

(3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.

(4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court. e) Any other dispute relating to environment and land.

It was submitted that the appellants should have therefore filed the appeal before the Environment and Land Court which is clothed with jurisdiction under Article 162(2)(b) of the Constitution and Sections 13, 16A & 26(4) of the Environment and Land Court Act to hear appeals emanating from decisions of the Subordinate courts in respect to occupation and title to land.

In opposition, the appellants in their submissions dated 31st January 2022 argued that the fact and issue of registration of the case CMCC Case No. 5493 of 2018 as at the magistrate level is not a point of law to warrant dismissal of this suit. It is simply a matter of fact to be proved by any party who alleges and should be left to the court to determine during trial. The said case was registered as a commercial suit and therefore the preliminary objection is vague and an abuse of the court process.

On jurisdiction, the appellants’ submitted that this court has the requisite jurisdiction to hear this appeal and make a decision binding on all the parties in this appeal. The High Court enjoys unlimited original jurisdiction in criminal and civil matters. The matter herein was heard as a commercial suit. The matter can only be appealed at the High Court civil division.

Analysis and determination.

I have carefully considered the objection which has been raised, the submissions filed by counsel, and the pleadings. The respondents have raised an objection stating that this court has no jurisdiction to determine this appeal. I will first consider whether the objection has attained the threshold of being pure points of law.

In Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696 the court had the following to say on preliminary objections: -

“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded or which raises by clear implication out of pleadings, and which if argued as a preliminary point, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration.........”

In the case of R v. Karisa Chengo [2017] eKLR, the court held that that;

“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

Also in John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLRit was held that: -

“The position in law is that a Preliminary Objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the Preliminary Objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable Preliminary Objection on a point of law.”

On examination of the preliminary objection, I find that the objection, if successful, is capable of finally disposing the whole matter. The objection, therefore, attains the threshold of a pure preliminary point of law. It is based on the jurisdiction of this court to determine the appeal and is grounded on the Constitution. Jurisdiction is the authority a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute or Constitution. Jurisdiction cannot be imposed by parties to a suit or dispute and not even by consent or agreement of the Parties. Even the manner in which the title of the suit is framed cannot confer jurisdiction to the court. The nature of the dispute is what determines which court has jurisdiction to hear the dispute.

The framers of the Constitution of Kenya 2010 in their wisdom created Article 165 conferring upon the High Court wide jurisdiction stipulated thereunder. Other jurisdiction is vested in this Court by various statutes. In the same Article 165 of the Constitution, the jurisdiction of this Court is expressly limited.

In addition, under Article 162(2) of the Constitution, two courts of the same status of the High Court are contemplated to be established to hear and determine specific disputes namely, Environment and Land and Employment and Labour Relations. Under clause 3, Parliament shall determine the jurisdiction and functions of the courts contemplated in clause 2.

Article 165(5) (b) of the Constitution is clear that:

(5) “The High Court shall NOT have jurisdiction in respect of matters-

(a) Reserved for the exclusive jurisdiction of the Supreme Court Under this Constitution; or

(b) Falling within the jurisdiction of the Counts contemplated in Article 162(2)

The Courts contemplated in Article 162(2) of the Constitution are the Employment and Labour Relations Court and the Environment and Land Court. The latter Court is established Under Section 4 of the Environment and Land Court Act, Chapter 12A Laws of Kenya.

Turning back to the matter at hand, the appellants have appealed against the decision in Milimani CMCC Case No. 5493 of 2018 where the court made a determination on the ownership of plot No. 150 Kariobangi-Riverbank. The appellants having been aggrieved by that decision preferred this appeal. It is therefore undisputed that the substratum of this appeal is ownership of land. It is this court’s view that the issues touching on land ownership is a preserve of the Environment and Land Court as provided by the Constitution and by Statute. This court hence lacks jurisdiction to hear and determine the Appeal herein and the court best suited to canvass these issues would be the Environment and Land Court.

The trial court in its judgment delivered on 4th June 2021 summarized the plaintiff’s claim against the defendants (appellants) as a declaration that Plot number 150/KARIOBANGI – RIVER BANK belongs to the plaintiff and that the doctrine of adverse possession was not applicable. The plaintiff also sought an eviction order, damages and an order of injunction restraining the appellants herein from interfering with the suit property.

I have noted that it is the respondent who instituted the claim before the Chief Magistrate’s Court as a civil suit. It is not clear whether the trial magistrate who determined the case is not permitted to hear land matters. This court cannot assume jurisdiction simply because the original dispute was filed as a civil case. The appellants ought to have raised it with the trial court whether it had jurisdiction to determine a land dispute. The same issue can be raised before the ELC Court on appeal. The filing of the suit in a civil division of the High Court does not automatically grant that division jurisdiction to determine the dispute. Should the court find that the dispute belongs to a different court, it should not entertain such a matter.

I am satisfied that the core of the dispute is land ownership. This court lacks jurisdiction to deal with land ownership or declare ownership through adverse possession.

In the end I find that the Preliminary Objection dated 29th September 2021 is merited and is hereby granted. Since the court lacks jurisdiction, I do not find it prudent to transfer the matter to the ELC court. The appeal is hereby struck out with no orders as to costs.

DATED AND SIGNED AT NAIROBI THIS 8TH DAY OF MARCH 2022

S.J. CHITEMBWE

JUDGE