[2023] KEHC 27367 (KLR)

Tawane v Hussein (Civil Appeal 004 of 2022) [2023] KEHC 27367 (KLR) (28 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27367 (KLR)

Republic of Kenya

In the High Court at Garissa

Civil Appeal 004 of 2022

JN Onyiego, J

December 28, 2023

Between

Kassim Mohamed Tawane

Appellant

and

Ibatho Abdullahi Hussein

Respondent

(Being an appeal from the judgment of hon.Ole Tanchu(SRM) Delivered on 23-03-2022 Garissa CM’s court)

Judgment

1. By an undated amended plaint, the plaintiff/respondent filed a suit against the defendant/appellant urging the court to enter judgment against the defendant/appellant for orders that:i.A declaration that the suit plot is the property of the plaintiff.ii.A quiet possession and eviction of the defendant/appellant from the said plot.iii.A declaration that the plaintiff is the only legal proprietor of all that piece of land situated in Garissa allocated to him vide allotment letter reference number 34826/XV measuring approximately 0. 1 hectares.iv.A permanent injunction order restraining the defendant or any other party whether by themselves, their agents, their servants or whomsoever is acting on their behalf from claiming and/or trespassing or in any way interfering with the plaintiff’s land.v.General damages.vi.Costs of the suit plus interest thereon.vii.Any other /further relief the Honourable Court may deem fit to grant.

2. The defendant/appellant filed a defence dated 20. 03. 2014 seeking the plaintiff/respondent’s suit to be dismissed. That the property referred to as GSA/2062 was unknown to him and that he was only aware of property known as GSA/B/2078 measuring 0. 095 which is situated within Bulla Sagaray. He averred that the said property belonged to him and that the plaintiff/respondent had no claim over the same. He further argued that the said land was an established homestead with a family house with other temporary structures. Consequently, he urged the court to find that the plaintiff/respondent’s suit was devoid of any merit.

3. The plaintiff/respondent’s case was premised on the fact that the defendant/appellant had unlawfully and illegally encroached on her parcel of land known as GSA/20692 measuring 0. 10 ha situated at Bulla Iqra within Garissa Municipality. That she had been in actual and continuous occupation of the said plot while paying all rates and rents to the Municipal Council of Garissa.

4. She further averred that the defendant/appellant had unlawfully, illegally and without colour of right forcefully and violently invaded the suit property, appropriated it for himself and further constructed some structures prompting her to file the suit herein. She averred that the actions by the defendant/appellant were detrimental to her interest in the said land. Finally, she urged this court to find in her favour and then grant the prayers sought.

5. Upon conclusion of the hearing, the trial magistrate made a ruling delivered on 23. 03. 2022 to wit that:i.The plaintiff’s suit is hereby dismissed with no order as to costs.ii.Specifically, each party to bear its own costs. Even though cost ordinarily follow the outcome of a suit, in my view, the above order on costs is made in view of the protracted battle between the parties and to prevent any further confrontations between the parties and also to prevent any possibility of the defendant using the issue of costs in harassing the plaintiff.

6. Aggrieved by the said judgment, the defendant/appellant proffered this appeal against the findings of the trial court via a memorandum of appeal dated 05. 04. 2022 citing 4 grounds of appeal as hereunder;i.The appellant was successful in his defence hence the order for costs should have followed the event.ii.The court erroneously treated the appellant as an aggressor and then proceeded to make an order detrimental to his rights yet it is the respondent who was from the beginning the aggressor who ought to have been penalized in costs.iii.In making the order for costs, the court erroneously overlooked the fact that there is not one single thing which the appellant did to the property of the respondent to justify the respondent filing the suit against the appellant.iv.That generally, the order on costs lacked merit and ought to be reversed to enable the appellant recover his costs from the respondent.

7. When the matter came up for directions, the court directed that the appeal be canvassed by way of written submissions to which the appellant submitted that the trial court erred by failing to award the defendant/appellant costs of the suit notwithstanding the fact that he had found in his favour. He urged this court to find that the trial court did not state the basis upon which it based its orders.

8. He faulted the trial court for finding that awarding costs to the defendant/appellant may lead to the plaintiff/respondent getting harassed by the defendant/appellant having in mind that the suit herein had taken so many years to finalize. He urged this court to allow the appeal as the order by the trial court was baseless and thus ought to be vacated.

9. It is however worth noting that the respondent did not participate in the appeal herein despite being served.

10. This being the first appellate court, it is thus bound to reconsider, re- evaluate and re -assess the evidence tendered before it and therefore arrive at an independent determination and or conclusion without losing sight of the fact that the trial court had the advantage of seeing and listening to the witnesses to be able to assess their demeanour. See Selle and another vs Associated Motor Boat Co. Ltd and others (1968) E.A 123 and Peters Vs Sunday post limited (1958) E.A 424.

11. I have considered the record of appeal, grounds of appeal and the submissions by the appellant. In my view, the main issues for determination are; whether the prayers sought herein can be granted and more importantly, whether this court has jurisdiction to entertain this appeal.

12. This court has perused the record carefully. From the onset, it is certainly clear that the subject matter of this appeal is purely a dispute anchored on land ownership. The appellant in his submissions also confirmed that the costs being sought were as a result of a contest over ownership of land between him and the respondent

13. It is important to note that, with the enactment of the Environment and Land Court Act of 2012, jurisdiction to determine disputes relating to ownership and use of land is bestowed upon the Environment and Land Court. It is my considered view that issues arising out of the instant appeal are not within the jurisdiction of this Honourable Court. See the decision of the Supreme Court in the case of Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others, Supreme Court Petition No. 19 of 2018- paragraph 40) where the court held that;“This is for the reason that where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing as jurisdiction must be acquired before a case can be heard. [See the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR”.

14. Similarly, in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court held as hereunder;“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. [Also see Articles 165 (5) and 162 (2) of the constitution; and Section 13 of the Environment and Land Court Act”

15. From the reading of Article 162 of the Constitution, it is clear that the Constitution intended to create special courts with special jurisdiction in land matters. It is not controverted that the trial magistrate who heard this matter had jurisdiction to do so. But in as far as this Honourable Court is concerned, the said jurisdiction has not been donated to it. In short, this being a High Court, the court lacks jurisdiction to deal with matters of land and/or issues related to land and therefore, it must down its tools.

16. It goes without saying that this court can suo motto raise the issue of lack of jurisdiction even when none of the parties has raised it. The fact that the appeal was not challenged by the respondent is not itself a guarantee or automatic that the appeal must succeed. See Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR“Be that as it may, as a court of Law, we have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the Court will as a matter of cause grant the sought orders. It behooves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted. The Court is under a duty to look at the application and without making any inferences on facts point out any points of law, such as any jurisdictional impediment, which might render the application a non-starter. We see no such jurisdictional issue in the application before us. Hence we have proceeded to consider the facts before us as against the jurisprudence for grant of stay orders set by this Court”

17. The appellant ought to have directed his appeal to the land and Environment court appellate division and not the high court. Therefore, on account of lack of jurisdiction, this court cannot endeavour to make adetermination on the merits of the case. In view of the foregoing, I am inclined to make the following orders;i.That this honourable court is bereft of jurisdiction to determine the appeal herein.ii.That the appeal herein is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF DECEMBER 2023J. N. ONYIEGO..............................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR