[2022] KEHC 17079 (KLR)

Sure Auctioneers v Ahmed (In the Matter Arising from Instructions for Distress for Rent Dated 19th April, 2016); Lualenyi Ranching Co. Ltd (Landlord); Ahmed (Tenant) (Miscellaneous Civil Application 260 of 2019) [2022] KEHC 17079 (KLR) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 17079 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Civil Application 260 of 2019

MN Mwangi, J

July 15, 2022

Between

Sure Auctioneers

Applicant

and

Ibrahim Somow Ahmed

Applicant

In the Matter Arising from Instructions for Distress for Rent Dated 19th April, 2016

and

Lualenyi Ranching Co. Ltd

Landlord

and

Ibrahim Somow Ahmed

Tenant

Ruling

1. The notice of motion before me is dated September 27, 2019. It has been brought under the provisions of article 159 of the Constitution of Kenya, 2010, sections 1A, 1B and 3A of the Civil Procedure Act and the Auctioneers Rules, 2009. The applicant seeks the following orders –i.Spent;ii.Spent;iii.That the exparte proceedings conducted in this suit, the ruling delivered on August 29, 2019 and the consequential certificate of costs issued on September 16, 2019 be all set aside;iv.That the respondent, Ibrahim Somow Ahmed, be granted unconditional leave to defend and/or raise an objection to the bill of costs filed herein by Sure Auctioneers and to seek its dismissal/ striking out with costs;v.That in the alternative, and without prejudice to prayer 3 above, the bill of costs dated and filed in court on June 12, 2019 be struck out with costs to the respondent; andvi.That costs of the application be borne by Bernard Gichuki Mwangi T/a Sure Auctioneers.

2. The application is anchored on the grounds in support of it and the affidavit of Ibrahim Somow Ahmed, the applicant, sworn September 27, 2019.

3. I did not see any replying affidavit in the court file although in the respondent’s written submissions, his advocate mentioned that his client was relying on the replying affidavit sworn on November 18, 2019 and its annexures.

4. I need not go into details in consideration of the matter before me save to say that the suit that formed the subject of taxation arose from Mombasa ELC No 93 of 2016 – Ibrahim Somow Ahmed v Lualenyi Ranching Co Ltd, which was a matter that challenged distress for rent, that was levied on behalf of Lualenyi Ranching Co Ltd by the applicant herein, Sure Auctioneers.

5. I therefore wish to address the issue of the jurisdiction of the High Court suo moto as it was not raised by the respondent’s counsel. Section 13 of the Environment and Land Court Act No 19 of 2011 provides for the jurisdiction of the ELC. Section 13(2) outlines the said jurisdiction. It states as follows –(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 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.(3)Nothing in this act shall preclude the court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under articles 42, 69 and 70 of the Constitution.(4)In addition to the matters referred to in subsections (1) and (2), the court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the court.(5)………………………………………………………….(6)………………………………………………………….(7)In exercise of its jurisdiction under this act, the court shall have power to make any order and grant any relief as the court deems fit and just, including—(a)interim or permanent preservation orders including injunctions;(b)prerogative orders;(c)award of damages;(d)compensation;(e)specific performance;(g)restitution;(h)declaration; or(i)costs.” (emphasis added).

6. Section 13(7)(i) of the Environment andLand Act evidently shows that the issue of costs in a matter that falls in the ambit of environment and land is to be determined by the Environment and Land Court and not by the High Court. In the case of Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR, the Court of Appeal held as follows on the issue of jurisdiction –“In numerous decided cases, courts, including this court have held that it would be illegal for the High Court in exercise of its powers under section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdictions to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow a court to transfer an incompetent suit for wants of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign, it is settled that parties cannot, even by their consent confer jurisdictions on a court where no such jurisdiction exists. It is so fundamental that where it lacks parties cannot even seek refuge under the order principles to the overriding objective under the Civil Procedure Act, the appellate jurisdiction Act or even article 159 of the Constitution to remedy the same.”

7. Before the above decision was made, the High Court and courts of equal status would generously transfer cases from one court to another when they found that they had no jurisdiction. That is now a thing of the past as we are bound by the doctrine of stare decisis.

8. Since the subject matter of the application herein falls under section 13 of theEnvironment and Land Act, I have no option but to strike out the notice of motion dated September 27, 2019 so as to give an opportunity to the applicant to move to the proper court.

9. The costs of the application dated September 27, 2019, are awarded to Sure Auctioneers, the respondent herein.

DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 15TH DAY OF JULY, 2022. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Mr. Amuga for the respondent/applicantMr. Njoroge B for the applicant/respondentMr. Oliver Musundi – Court Assistant.