Bubiru v Awino (Civil Appeal E145 of 2024) [2026] KEHC 10256 (KLR) (10 June 2026) (Ruling)

Bubiru v Awino (Civil Appeal E145 of 2024) [2026] KEHC 10256 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEHC 10256 (KLR) Republic of Kenya In the High Court at Bungoma Civil Appeal E145 of 2024 RK Ondieki, J June 10, 2026 JURISDICTION: IN THE HIGH COURT, BUNGOMA. FILE NUMBER: HC CIVIL APPEAL No. E145/2024. BETWEEN: SABASTIAN BUBIRU& IMMACULATE AWINO. CORAM: R.K. ONDIEKI- JUDGE HEARD: 9th May, 2026. DELIVERED: 9th JUNE, 2026. Between Sabastian Bubiru Appellant and Immaculate Awino Respondent (Being an Appeal against the Judgment by Hon. Tom Mark Olando (PM) in Chief Magistrate’s Court at Bungoma Case No. E473B of 2023, Delivered on 17th September, 2024) Ruling 1.Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing. The Halsbury's Laws of England, 4th Edition Vol 37 Para 14, the authors expounded on jurisdiction and stated that the jurisdiction of the court which is comprised within the term ‘inherent’ is that which enables it to fulfil itself, properly and effectively, as a court of law. The overriding feature of the inherent jurisdiction of the court is that it is part of procedural law, both civil and criminal, and not part of substantive law; it is exercisable by summary process, without plenary trial; it may be invoked not only in relation to the parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in litigation between the parties; it must be distinguished from the exercise of judicial discretion; it may be exercised even in circumstances governed by rules of court. The inherent jurisdiction of the court enables it to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process ... In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them. 2.In the celebrated case of Owners of the Motor Vehicle M.V. Lillians Versus Caltex Oil (Kenya) Limited (1989) KLR1, the Court of Appeal held that jurisdiction means the authority which 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 statute, charter or commission under which the court is constituted and may be extended or restricted by the like mean. 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 action and matters of which the particular court has cognizance of or as to the area over which the jurisdiction shall extend; or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal including an arbitrator depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction but except where the court or tribunal ha s been given power to determine conclusively whether the fact exists where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision a merit to nothing. Jurisdiction must be acquired before judgment. It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Facts constitute the evidence before the court. The moment a court determines that it has no jurisdiction, it has to down its tools and proceed no further. 3.In Words and Phrases Legally defined, Volume 3: I – N, the Author recorded that the limits of Jurisdction are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the 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 of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given. 4.In the case of Macfoy Vs United Africa Ltd (1961) 3 All ER. 1169 Lord Denning MR said that, if an Act is void, then it is in law a nullity and not a mere irregularity. It is not only bad but incurably bad. There is no need for an order of the court to set it up aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expert it to stay there. It will collapse. 5.Equally, in the case of Kimani Wanyoike Versus Electoral Commission Civil Appeal No. 213 of 1995 (UR) the Court of Appeal ruled that where there is a law prescribed by either a constitution or an act of parliament governing a procedure for the redress of any particular grievance, that procedure should be strictly followed. 6.Before I commenced writing this Judgement, I perused the entire Record of Appeal as well as the primary suit proceedings and noted, that the claim touches on the environment and, the use, and occupation of, and title to, land. Article 162 of the Constitution establishes the entire spectrum of Courts in Kenya. Under Article 162(2), courts of equal status with the High Court, were established to exercise jurisdiction over, among others, occupation of and title to land. 7.In the primary suit, the reliefs sought by the Appellant were:a.A declaration that the Plaintiff purchased land from the Defendant and paid her an amount of Kshs2,550,000/=b.A declaration that the plaintiff has undertaken substantial construction and improvements on the parcel of Land known as E.Kanduyi/S.Bukusu/5778 in reliance of the Defendants covenants in the land Sale Agreement between the parties only to find out later that the defendant had no right of title to sell the parcel of land to the defendant. The plaintiff has lost Kshs140,000/ in construction cost and improvements on the disputed land before being stopped by the defendant’s omission.c.A declaration that the defendant owes the plaintiff Kshs867,000/ in legal fees and legal expenses arising from the plaintiff having to defending the lawsuits that he was thrust into as a result of the defendant’s fraud, action or inaction.d.A declaration that the defendant owes the plaintiff Kshs250,000 in costs to sink a borehole on the suit premises.e.An order that the defendant to pay the plaintiff, Sabastian Bubiru a sum of Kshs5,067,000, as a result of the breach of contract and fraudulent receipt of money from the Plaintiff.f.General damages.g.Cost of the suit and interest. 8.Consequently, it is not in disputation, that the declaration orders sought must at the fullness of time, require analysis of the evidence, such as whether the land was available for sale or whether, the Appellant complied with the law, as established in many a decision in Land Law, among other legal issues. To me, this is a Jurisdiction issue. Article 165(5) of the Constitution states that the High Court shall not have jurisdiction in respect of matters, falling within the jurisdiction of the courts contemplated in Article 162(2). 9.This is a matter whose jurisdiction falls with Environment and Land Court and not in the High Court. Disposal: 10.The Appeal is struck out and each part to bear own costs. DELIVERED VIRTUALLY THIS 10TH JUNE, 2026 IN THE PRESENCE OF THE APPELLANT, THE RESPONDENT AND BRIAN- COURT ASSISTANT.ORDERS ACCORDINGLY.R.K. ONDIEKI.JUDGE.Citations:Halsbury's Laws of England, 4th Edition Vol 37.Owners of the Motor Vehicle M.V. Lillians Versus Caltex Oil (Kenya) Limited (1989) KLR1.Words and Phrases Legally defined, Volume 3: I – N.Macfoy Vs United Africa Ltd (1961) 3 All ER. 1169.Kimani Wanyoike Versus Electoral Commission Civil Appeal No. 213 of 1995 (UR).