[2015] KEHC 7440 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL CASE NO. 66 OF 2015

RUTH WAKONYO KABUNDU…..…..1ST PLAINTIFF/APPLICANT

KABUNDU HOLDINGS LTD….……2ND PLAINTIFF /APPLICANT

VERSUS

PATRICK MUKIRI KABUNDU…....…DEFENDANT/RESPONDENT

RULING ON JURISDICTION /DIRECTIONS

This matter was referred to this court by Honourable Mbogholi Msagha J after an order was made excluding all other judges in the Civil Division except myself and the Presiding Judge, from hearing and or determining this matter, for one reason or the other as per the record.

I have perused he file herein together with HCC 649 of 1996. Indeed the two matters are related.

However, this ruling does not make any substantive orders in respect of HCC 649/96 which was heard and determined, awaiting enforcement of the orders/decree therein.

I urged both parties to this suit to address the court on the matters that gave rise to the filing of a multiplicity of applications and other pleadings and that enabled the court to appreciate the background history to this very unfortunate dispute pitying very close family members and more so, between mother (1st plaintiff) and her first born son (defendant). One of the critical issues that arose is for this court to determine whether this dispute relates to land and or it is Resjudicata HCC 649/1996.

I am however, at present not determining the issue of Resjudicata as it forms the substratum of one of the applications filed by the defendant herein.

Nonetheless, the issue of whether or not this is a land matter is a matter that must be determined at this stage as it will enable this court to first determine whether it has jurisdiction to hear and or determine this matter on merit. For without jurisdiction, this court cannot do anything more. In addition, the parties cannot confer jurisdiction to the court and neither can the court arrogate itself jurisdiction which it does not possess. The locus classicus case on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1where Justice Nyarangi of the Court of Appeal held as follows

'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 right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.'

I have examined the plaint dated 20th February 2015 paragraph 7 thereof is clear and avers that the plaintiffs’ claim is that the defendant is interfering and trespassing on land parcels named in paragraph10 thereof LR Mombasa Block X1/491 as well as Nairobi LR 7771/9,10,11,12,13,14,15,16,17,18,19 and 20 and Mombasa/Block XX/47 A for which paragraph ( C ) of the main prayers seek for permanent injunction to restrain the defendant from among others, trespassing; entering into the said parcels of land and in prayer (d) an account for monies received as rent from the Mombasa properties and for an order that the defendant to hand over the title documents to the 2nd plaintiff.

That being the case, it does not require this court time to research and establish its jurisdiction. Article 165(5) ( b) of the Constitution expressly ousts the jurisdiction of the High Court from hearing and determining disputes whose jurisdiction is reserved, exclusively for the court contemplated in Article 162(2) (b) of the Constitution.

Under Article 162(2) (b) of the Constitution, a specialized court is contemplated to be established to hear and determine disputes relating to environment and the use of and occupation of and title to, land.

Article 162(3) of the said Constitution mandates Parliament to determine the jurisdiction and functions of the courts contemplated in clause (2) of Article 162. In 2011, Parliament enacted the Environment and Land Court Act of which I was privileged to have been one of its drafters.

Section 4 of the said Act establishes the Environment and Land Court. Under Section 13(1) the court has both original and appellate jurisdiction to hear and determine disputes contemplated in Article 162(2) (b) of the Constitution. Section 13(7) of the said Act makes provision for the power of the court to make orders and grant relief including interim or permanent injunction, compensation, damages, restriction, declaration and specific performance. The plaintiffs claim is injunctive and an order for an account among others. The 2nd plaintiff alleges that it is the registered owner of the named properties which the defendant is alleged to be illegally trespassing on.

No doubt that allegation of trespass to land alone places the claim herein under the jurisdiction of the Environment and Land Court.

As the jurisdiction of this court is expressly ousted by Article 165(5) (b) of the Constitution, to go against that provision is to contravene the Constitution which gives this court the primary jurisdiction to hear and determine disputes.

In the premises, I decline to hear this matter or any part thereof that affects rights of parties thereto and I direct that this matter be placed before the Presiding Judge of Environment and Land Court for hearing and final disposal and as he may direct as appropriate.

Dated, signed, delivered and directed this 1st day of July 2015.

R.E. ABURILI

JUDGE

1/7/2015

COURT - The matter to be mentioned before the Environment and Land Court on 22nd July 2015.

R.E. ABURILI

JUDGE

1/7/2015