[2023] KEHC 26556 (KLR)
The High Court lacks jurisdiction to entertain judicial review proceedings arising from disputes concerning land ownership, occupation, or title, as such jurisdiction is expressly conferred upon the Environment and Land Court by the Constitution and the Environment and Land Court Act. The court, acting on its own...
Source-derived case information.
- Citation
- [2023] KEHC 26556 (KLR)
- Parties
- Applicant: Republic; Respondent: Director of Survey, Kisumu County; Respondent: Senior Principal Magistrate Maseno Magistrates Court; Applicant: Francis Lugalia Asara; Interested Party: Joshua Rachilo Agengo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review E001 of 2020
- Procedural Posture
- Judicial Review / Ruling on Jurisdiction
- Outcome
- Application struck out for want of jurisdiction.
- Judges
- RE Aburili
- Legal Topics
- Jurisdiction of Courts, Environment and Land Court Jurisdiction, Judicial Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Director of Survey, Kisumu County
Respondent
Senior Principal Magistrate Maseno Magistrates Court
Respondent
Francis Lugalia Asara
Applicant
Joshua Rachilo Agengo
Interested Party
Procedural Posture
Judicial Review / Ruling on Jurisdiction
Legal Issues
- 1 Whether the High Court has jurisdiction to hear and determine judicial review proceedings arising from disputes relating to land ownership and occupation.
- 2 Whether the proper forum for such disputes is the Environment and Land Court as per the Constitution and statutory law.
Ratio Decidendi
The High Court lacks jurisdiction to entertain judicial review proceedings arising from disputes concerning land ownership, occupation, or title, as such jurisdiction is expressly conferred upon the Environment and Land Court by the Constitution and the Environment and Land Court Act. The court, acting on its own motion, found that the dispute in question related to alleged encroachment and land rights, matters squarely within the purview of the Environment and Land Court. Consequently, the High Court struck out the proceedings for want of jurisdiction, emphasizing that it cannot arrogate to itself powers that have been constitutionally and statutorily removed.
Court Disposition
Application struck out for want of jurisdiction.
Orders
- The judicial review proceedings are struck out for want of jurisdiction.
- No orders as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
Republic v Director of Survey, Kisumu County & another; Asara (Exparte Applicant); Agengo (Interested Party) (Judicial Review E001 of 2020) [2023] KEHC 26556 (KLR) (1 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26556 (KLR)
Republic of Kenya
In the High Court at Kisumu
Judicial Review E001 of 2020
RE Aburili, J
December 1, 2023
In The Matter Of An Application By Francis Lugakia Asara And Others For Orders Of Certiorari And Prohibition And In The Matter Of And/or The Violation Of Article 27, 48, 47(1) And 50 Of The Constitution And Section 4(3) Of The Fair Administrative Act And In The Matter Of Section 87 Of The Land Registration Act And In The Matter Of The Right To Be Heard As A Fundamental Principle Of Justice And In The Matter Of Sections 8 And 9 Of The Law Reforms Act, Chapter 26, Law Of Kenya And In The Matter Of Order 53 Of The Civil Procedure Rules, 2010 And In The Matter Of Article 23 Of The Constitution Of Kenya, 2010 And The Enforcement Of Fundamental Rights And Freedoms
Between
Republic
Applicant
and
Director of Survey, Kisumu County
1st Respondent
Senior Principal Magistrate Maseno Magistrates Court
2nd Respondent
and
Francis Lugalia Asara
Exparte Applicant
and
Joshua Rachilo Agengo
Interested Party
Ruling
1. This Judicial Review matter was filed on 26th October 2020. From the pleadings which I have perused, no doubt, the impugned proceedings were before Maseno Senior Principal Magistrate ELC matter relating to a parcel of land vide Environment and Land Court Case No. 1 of 2020.
2. The land in issue and the dispute was over an alleged encroachment of the parcel of land. That type of dispute and appeal or Judicial Review proceedings arising from such dispute or decision of the ELC Magistrate’s Court or Land Registrar could only be lodged before the Environment and Land Court which is a Superior court with the same status as the High Court.
3. Articles 162 (2) (b) and 165 (5) (b) of the Constitution as read with Section 13 of the Environment and Land Court Act confer on the ELC jurisdiction to hear and determine all disputes relating to Environment and Land, to wit, ownership, occupation and title to land among others.
4. The jurisdiction of the High Court is explicitly removed from such disputes and therefore without jurisdiction, this court can do no more than down its tools and say no more.
5. Therefore, on this court’s own motion and for want of jurisdiction, these Judicial Review proceedings are hereby struck out with no orders as to costs as this court cannot arrogate itself jurisdiction that it is devoid of and or is deprived of by the Constitution and the Statutory enactments.
6. This file is closed.
7. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 1ST DAY OF DECEMBER, 2023R.E. ABURILIJUDGE