[2022] KEHC 16255 (KLR)

Piston Heads Customs & Body Workshop Limited v Arjan & another (Commercial Case E871 of 2021) [2022] KEHC 16255 (KLR) (Commercial and Tax) (6 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16255 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Case E871 of 2021

DO Chepkwony, J

December 6, 2022

Between

Piston Heads Customs & Body Workshop Limited

Plaintiff

and

Naran Velji Arjan

1st Respondent

Jeremiah Kiarie Muchendu t/a Icon Auctioneers

2nd Respondent

Ruling

1. Vide a plaint dated October 21, 2021, the plaintiff has instituted a suit seeking for judgment against the defendant for:-a.A declaration that the lease agreement date November 8, 2019 is null and void for all intents and purposes;b.An order for permanent injunction restraining the 1st and 2nd defendants herein whether by themselves, their agents, servants, employees, invitees, and/or otherwise whomsoever from harassing, intimidating and/or interfering with the operations of plaintiff and its employees, officers, agents and/or representatives;c.Costs of the suit;d.Any other relief that the honourable court shall deem fit and proper to grant.

2. Alongside the plaint, the applicant/plaintiff filed a notice of motion application dated October 21, 2021 seeking for orders that:-a.Spent:b.Spent;c.An order of temporary injunction restraining the respondents, their agents, assigns, servants, representatives and or any other person from advertising for sale, selling and/or dealing in any way with the applicants moveable properties itemized in the 2nd respondent’s notice of proclamation of attachment serialized as sale forms Nos 1939, 1940 and 1941 pending the hearing and determination of this application inter-partes;d.An order of temporary injunction restraining the respondents, their agents, assigns, servants, representatives and or any other person from advertising for sale, selling and/or dealing in any way with the applicants moveable properties intemized in the 2nd respondent’s notice of proclamation of attachment serialized as sale forms Nos 1939, 1940 and 1941 pending the hearing and determination of this suit;e.An order directing the respondents to immediately release to the objector the following moveable property in the same condition they were in at the time of their being carted away and at the respondents’ expense:-i.Compute for alignment machineii.TET screeniii.Hydraulic pumpiv.Compressor 200Lv.Two (2) jacks – One (1) big 5 ton jack and small 3 ton jackvi.Tool boxvii.Wheel balancerviii.Tyre changerf.An order to release to the applicant of the residue of all the moveable property carted away from the applicant’s premises in the same condition they were in at the time of their carting away, at the respondents expence;g.Costs of this application be provided for by the respondents jointly and severally.This application is premised on the grounds on its face and the affidavit sworn on October 21, 2021 by Eddie Karisa and the annexures attached thereto.

3. In response thereto, the 2nd respondent/defendant filed a notice of preliminary objection dated February 2, 2022, which is before this court for determination and is premised on the grounds that:-a.The allegations and issues raised by the applicant are disputes:-i.As to land use, title, tenure and boundaries due to the alleged acquisition of either the entire or portions of the land;ii.Arise from allegations of compulsory land acquisition and relate to questions of land management either by the 1st respondent or the alleged new owner; and,iii.Challenge the validity of a lease which is a private land contract while at the same time ironically seeking to enforce the dispute resolution clause within the said leaseb.The prayers as sought by the applicant either in the plaint or the interim application have been interim and permanent injunctive orders as well as declaratory orders all giving directions either as to ownership of the land, use, management, title and/or occupation of the same.c.The issues raised in paragraphs 1 to 8 of this notice of preliminary objection are adequately provided for in sections 13(2)(a), (b), (c), (d), (e) and 13(7)(a), (h) of the Environment and Land Court Act No 19 of 2011 (hereinafter "the Act") enacted pursuant to articles 162(2)(b) and 162(3) of theConstitution of Kenya, 2010. d.The foregoing provisions of the Constitution and the Act properly and rightfully instruct that and grant to the Environment and Land Court adequate and requisite jurisdiction to investigate the issues as summarized herein above which encompass the substratum of this matter and which require investigation by the respective court prior to determination both in the main suit as well as in the interlocutory application as filed by the applicant: not this honourable court.e.The applicant does not raise any commercial issues for adjudication before this honourable court moreso since there is neither any contention nor any dispute as to either the accrual of rent pursuant to the lease, computation of rent as accrued or the fact that the applicant has and continues to willfully fail, refuse, neglect and/or ignore to settle the said rents as accrued pursuant to the leasef.There being no commercial issues or question such as to call upon this honourable court to investigate, interrogate and/or pronounce itself upon, the 1st respondent posits and asserts that this honourable court therefore lacks jurisdiction to hear and determine this matter either at the interlocutory stage or at the trial stage and should down its tools immediately.g.The applicant's suit is therefore not properly before this honourable court the net effect of which is that all orders issued by this honourable court, whether on an interim basis or otherwise, are mute and unenforceableh.The 1st respondent therefore respectfully prays that this honourable court downs its tools with immediate effect to avoid engaging in an academic exercise and strike out the applicant's claim without any further consideration

4. On December 14, 2021, the parties in Kajiado were directed to canvass the notice of preliminary objection dated February 2, 2022 by way of written submissions. The 1st respondent filed submissions dated 2nd day of February, 2022 while the plaintiff filed submissions dated February 18, 2022.

5. In determining the notice of preliminary objection, I have considered the grounds raised in objecting the jurisdiction of this court to hear and determine this matter, the claim and prayers in the plaint and notice of motion application both dated October 21, 2021, the written submissions filed by the parties herein together with the cited statute and case law. I find the issues for determination being:-a.Whether the objection on the jurisdiction of this court to hear and determine the application and main suit meet the threshold of a preliminary objection; and if so,b.Whether this court is clothed with jurisdiction to hear and determine this matter; and if not, what orders should issue.

6. As for whether the issue of whether the objection on jurisdiction as raised by the 2nd defendant meets the threshold of a preliminary objection, the starting point is an appreciation of what a preliminary objection is as was defined in the celebrated case of Mukisa Biscuit Manufacturing Company Limited –vs- West End Distributors Limited[1969] EA 696, as;:….a preliminary objection consists of a pure point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are on objection on the jurisdiction of a court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”.Sir Charles Newbold, P at page 701 added;“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought in the exercise of judicial discretion.”

7. In the notice of preliminary objection, the 1st respondent has analysed the issues and allegations raised by the plaintiff/applicant in the plaint and application and asserts that the same relate to the dispute as to ownership, use, management, title or occupation or lease of the same which are preserve of the Environment and Land Court as provided for under sections 14(2)(a), (b), (c), (d), (e) and 13 (7)(a),(b), all of the Environment and Land Court Act No 19 of 2011 enacted pursuant to articles 162 (2) (b) and 162(3) of the Constitution. It also asserts that the applicant/plaintiff has not raised any commercial issues as neither contention is in regard to accrual of rent, computation of rent as accrued or willful failure, refusal, neglect to settle the same pursuant to the lease. The 1st respondent therefore deposits and asserts that in view of the foregoing, this court lacks the requisite jurisdiction to investigate, hear, inquire upon, determine and pronounce itself on the same.

8. On the other hand, the applicant contends that the portion of land which was acquired by the National Land Commission is where the plaintiff is conducting its business from, hence requires calling of evidence and evaluation of the same by the court and not by summary determination through a notice of preliminary objection which would stifle the plaintiff’s right to fair hearing as guaranteed under article 50 and 25, both of the Constitution of Kenya, 2010.

9. From the claims made by either party, for determination is the issue of whether this court has jurisdiction to hear and determine this matter at any stage of trial. It is common ground by both parties that jurisdiction for a court as was established in the “The Lillian ‘S’ case flows from the law and goes to the heart of a matter. Nyarangi, JA at page 14 of the Court of Appeal decision in the case of Owners of Motor Vessel Lillian ‘S’ –vs- Caltex Oil (Kenya) Limited [1989]KLR, stated:-“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step”.

10. In addition, the Court of Appeal in the case of Kenya Ports authority –vs- Modern Holdings (ES) Limited, Civil Appeal No 108 of 2016 [2017]eKLR, in making reference to Supreme Court decision in Samuel Kamau Macharia & another –vs- Kenya Commercial Bank Limited & 2 others [2012]eKLR, stated that:-“…a court can only exercise that jurisdiction that has been donated to it by either the Constitution or legislation or both. Therefore, it cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. Jurisdiction is in the end everything since it goes to the very heart of a dispute; without it, the court cannot entertain any proceedings and must down its tool”.From the above cited decisions, the question of a court’s jurisdiction to determine a suit is a point of law, hence the instant notice of preliminary objection meets the threshold as set out in the Mukisa Biscuit’s case.

11. The next issue for determination is whether this court has jurisdiction to hear and determine the application and entire suit herein. From the prayers sought in the plaint and motion for injunction, it is clear that the court has been called upon to make a declaration as to the validity or otherwise of the lease agreement dated November 8, 2019.

12. The applicant on the other hand submitted that the ownership of the suit property is not the core of the dispute but a collateral in determining the legal validity of the lease agreement dated November 8, 2019. He argues that the 1st defendant is demanding rent for a suit property he does not own and what the court needs to do is ascertain whether the portion the plaintiff sits on was acquired by National Land Commission so as to determine the validity of the lease agreement. He goes on to state that this court has unlimited jurisdiction to deal with civil matters as the one before it.

13. The Constitution of Kenyaunder article 162(2) provides as follows:-“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to;a)employment and labour relations; andb)the environment and the use and occupation of, and title to, land.”Article 162(3) thereof goes on to state:-“Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2)."

14. Parliament as was directed under article 162(2)(b) of theConstitution enacted the Environment and Land Court ActNo 19 of 2011 (hereinafter referred to as the ‘Act’) where, at section 2 and 4 of the Environment and Land Act was established.At section 13 of the Act, it is stated that:-"(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."

15. And theConstitution of Kenyaat article 165(5)(b) provides that:-“The High Court shall not have jurisdiction in respect of matters;b)falling within the jurisdiction of the courts contemplated in article 162 (2)”

16. Having taken into consideration the claim, prayers and issues raised by the plaintiff, it is my view that the same require a court in interrogating the validity and enforceability of the lease agreement, to confirm the title, use, tenure, occupation and management of the land as well as acquisition and possible transfer of interest in the same.

17. That being the case, this court has no jurisdiction to deal with such issues which are clearly within the ambit of the Environment and Land Court’s jurisdiction as provided for under section 13 of the Act. With such finding, this court is guided by the Court of Appeal decision in the case of Daniel Mugendi –vs- Kenyatta University & 3 others[2013]eKLR, that:-“...And in order to do justice, in the event where the High Court, the Industrial Court or the Environment & Land Court comes across a matter that ought to be litigated in any of the other courts, it should be prudent to have the matter transferred to that court for hearing and determination. These three courts with similar/equal status should in the spirit of harmonization, effect the necessary transfers among themselves until such time as the citizenry is well-acquainted with the appropriate forum for each kind of claim....”

18. In the interest of justice and so as to uphold the plaintiff’s/applicant’s right to fair trial as guaranteed under articles 50 and 25 of the Constitution of Kenya, 2010, it is hereby directed that the matter be transferred to the Environment and Land Court for hearing and determination of all the issues herein.

19. Accordingly, the original record of this court in the case herein be and is hereby sent herewith for appropriate action.

20. The costs of the application to be borne by the plaintiff.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 6THDAY OF DECEMBER, 2022. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Oduor counsel for Plaintiff/ObjectorCourt Assistant - Sakina