[2017] KEHC 2043 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

JUDICIAL REVIEW NO. 12 OF 2016

IN THE MATTER OF AN APPLICATION BY NUCLEAR INVESTMENTS LIMITED FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, AND PROHIBITION

AND

IN THE MATTER OF ARTICLES 259, 165 (6) & (7), 23 (3)f, 47 AND 50 OF THE CONSTITUTION OF KENYA 2010

BETWEEN

REPUBLIC…………………..............................................................................APPLICANT

-VERSUS-

THE CHIEF MAGISTRATE,

NAIVASHA LAW COURTS……………...…….......................................1ST RESPONDENT

THE LORDSHIP ATTORNEY GENERAL…….…………………………2ND RESPONDENT

TOTAL KENYA LIMITED………………..….…..………………….1ST INTERESTED PARTY

NUCLEAR INVESTMENTS SACCO………..…………………….2ND INTERESTED PARTY

NUCLEAR INVESTMENTS LIMITED…….…………………………EX-PARTE APPLICANT

J U D G M E N T

1. The undisputed background to this case is that pursuant to a dispute over the ownership of a Land Parcel No. 1317/226,situated at Gilgil Town that involved the ex-parte Applicant Nuclear Investment Limited and Nuclear Sacco Limited (2nd Interested Party) on one hand and the Total Kenya Limited (1st Interested Party) on the other hand, the latter filed a suit in the Chief Magistrate’s Court Naivasha against the ex-parte Applicant and the 2nd Interested Party herein. In the said suit, ELC No. 1 of 2016, the 1st Interested Party through a motion obtained ex-parte injunctive orders on 1st March, 2016 restraining the 2nd Interested Party and by extension theex-parte Applicant from interfering with the subject land.

2. The 1st Respondent, the Chief Magistrate Naivasha, upon issuing the injunctive orders set the Motion for inter partes hearing on 14th March, 2016, but prior to the date, the ex-parte Applicant filed a Notice of Preliminary Objection. It does seem that the said Preliminary Objection was not heard. What is not in dispute is that the preliminary objection challenged inter alia, the lower court’s pecuniary jurisdiction to entertain the dispute.

3. The present proceedings were prompted by the filing of contempt proceedings by the 1st Interested Party, in respect of the lower court’s orders made on 4th April, 2016, that the cause be held in abeyance and concurrent directions that the status quo be maintained pending the outcome of the Malindi Constitutional Petition No. 3 of 2016. (This Petition had been brought to challenge the jurisdiction of the subordinate courts to entertain Environment and Land Court matters, pursuant to Section 7 of the Magistrate’s Court Act). Allegedly, the ex-parte Applicant had disobeyed the status quo order by interfering with the suit land. On 20th September the lower court had issued summons against seven directors of the ex-parte Applicant to appear on 31st October, 2016 to show cause.

4. On 29th September, 2017 the ex-parte Applicant approached this court under judicial review proceedings. The position taken by the ex-parte Applicant through its pleadings, affidavits and submissions is that the impugned status quo order was ultra vires, unlawful and in contravention of the binding decision of the High Court in Malindi Petition Number 3 of 2016. Several authorities including the locus classicus on the issue of jurisdiction namely Owners of Motor Vessel M.V. “Lillian S” –Vs- Caltex Oil Kenya Limited [1989] KLR 1are relied on.

5. The 1st Interested Party defends the actions of the 1st Respondent asserting that the orders in Malindi High Court Petition Number 3 of 2016 were only gazetted on 18/3/2016. Thus the 1st Respondent’s initial injunctive orders of 1st March were made with jurisdiction. Further, that the subsequent status quo preservation order was in exercise of the general statutory jurisdiction of the court.

6. Relying on the case of Pastoli -Vs- Kabale District Local Government Council & Others [2008] 2 EA 300 the 1st Interested Party argued that none of the classic grounds namely, illegality, irrationality, procedural impropriety or want of jurisdiction deserving intervention by the court by way of judicial review, have been demonstrated by the ex-parte Applicant.

7. This court having considered all the material canvassed by the rival parties has concluded that these proceedings turn upon the question of jurisdiction: whether or not the 1st Respondent was clothed with the necessary jurisdiction as at 1st March, 2016 when it first issued the injunctive ex-parte orders, and subsequent extensions thereof, resting with the status quo preservation order made on 4th April, 2016.

8. The court has not had the advantage of reviewing the proceedings of the lower court, the same not having been supplied by any party. Secondly, the court has no way of verifying the exact dates of key events alleged in respect of the Malindi High Court Petition Number 3 of 2016.

9. Such key events include the date when the High Court in Malindi Court took away or suspended the jurisdiction of the subordinate courts in environment and land matters and when the relevant orders were published in the Kenya Gazette, as claimed by the 1st Interested Party. Thus it is difficult to arrive at the necessary factual finding whether or not the initial impugned orders of stay by the 1st Respondent was ultra vires. Besides, at the time of filing the Preliminary Objection the ex-parte Applicant was seemingly unaware of the orders of the High Court in Malindi. Their objection regarding jurisdiction was based on the pecuniary jurisdiction of the lower court.

10. Regarding subsequent extensions of the initial order and particularly on 4th April, 2016, it is evident from the copy of the subject orderGMM5annexed to the ex-parte Applicant’s affidavit herein, that by that date the subordinate court itself had become aware of the orders made regarding its jurisdiction in the Malindi Petition. Was the further order to maintain the status quo ultra vires? It is now a matter of public notoriety that the orders of the Malindi High Court were suspended by the Court of Appeal in December 2016, and on 19th October 2017, the Court of Appeal overturned the decision of the High Court in Malindi Petition Number 3 of 2016.

11. This means that the jurisdiction of the subordinate courts in environment and land matters has been reinstated. I am not privy to the final orders made by the Court of Appeal in the appeal with regard to orders made by the subordinate courts prior to and during the period when their jurisdiction had been suspended in Malindi High Court Petition Number 3 of 2016. The answer would be easier to anticipate had the Court of Appeal dismissed the appeal, because that would have meant that all such previous orders were null and void, having been made without jurisdiction. However, with the appeal succeeding my view is that the status quo ante was restored and therefore the subordinate courts had jurisdiction prior to the orders being made in the Malindi Petition.

12. I however think that if a court appears to lose jurisdiction while seized of a matter, it ought not to proceed to give any further orders. The ideal step, in this case was for the subordinate court to have left the matter in abeyance and/or referred it to the environment and land court for directions in respect of the ex-parte orders subsisting. It seems to me though that in granting the order to preserve the status quo, the subordinate court was acting out of caution to meet the exigencies of the situation. Even so, I take the view that now that the issue of the lower court’s jurisdiction in land matters has been resolved, no purpose will be achieved by impugning the said order.

13. By operation of the terms of the said order, it naturally lapsed when the Court of Appeal rendered its judgment. It would be redundant for this court to purport to quash an expired order. In the interest of justice and the overriding objective, it is best that the dispute moves forward towards determination. I therefore decline the prayers in the substantive motion.

14. The court also notes that the first and second grounds in the Preliminary Objection raised in lower court related to pecuniary jurisdiction rather than the challenge to jurisdiction raised in the Malindi Petition. Similarly, there are other grounds (3 – 7) which have not been resolved by the decision of the Court of Appeal in its decision in respect of the Malindi Petition. The ex-parte Applicant may still be minded to argue the Preliminary Objection before the lower court therefore.

15. In the circumstances, I direct that the parties do appear before the subordinate court (Nyambu CM) on 15th November, 2017 in order to argue the Preliminary Objection and/or the Motion filed on 1st March, 2016 seeking injunctive orders against the ex-parte Applicant and the 2nd Interested Party. In the interest of justice, this court in exercise of its inherent jurisdiction orders that the status quo be maintained until 15th November, 2017. For the avoidance of doubt, this means that the ex-parte Applicant and the 2nd Interested Party may not interfere with, enter into or in any way deal adversely with the disputed suit property.

16. Each party will bear its own costs.

Delivered and signed at Naivasha this3rdday ofNovember,2017.

In the presence of:-

Mr. Thuku holding brief for Mr. Kabathi for the ex-parte Applicant and 2nd Interested Party

Mr. Maina holding brief for Mr. Muchemi for the 1st Interested Party

Court Assistant – Barasa

C. MEOLI

JUDGE