https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8992

Njenga v Githae (Civil Appeal 134 of 2020) [2026] KEHC 8992 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 8992 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal 134 of 2020 KL Kandet, J June 26, 2026 Between Willy Njenga Appellant and Njoroge Githae Respondent (Being an Appeal against the Judgment of Hon. K.M Njalale delivered on 19.02.2018 in Limuru SPMCC No. 3 of 2015) Judgment 1.This appeal arises from the judgment delivered on 19th February 2018 in Kiambu SPMCC No. 3 of 2015 (hereinafter the suit). The suit was commenced by way of an Amended Plaint dated 12th August 2016 filed by Njoroge Githae, the Plaintiff in the lower court (hereinafter the Respondent), against Willy Njenga, the 1st Defendant in the lower court (hereinafter the Appellant). The Respondent sought the following reliefs:i.General damages for trespassii.An order of permanent injunction restraining the Defendant, whether by himself, his agents, servants, employees, or any person acting on his behalf, from entering, remaining on, cultivating, trespassing upon, or otherwise dealing with Land Parcel No. Limuru/Kamirithu/T.568 in any manner adverse to the Plaintiff’s interests;iii.An order against the defendant to vacate from the suit property and in default for his forceful eviction. 2.Upon hearing the matter, the trial court found in favour of the Respondent, held that the Respondent was the lawful owner of the suit property, and issued orders directing the Appellant to vacate the land. The court further granted a permanent injunction restraining the Appellant from entering upon or otherwise interfering with the suit property. 3.Aggrieved by the judgment of the trial court, the Appellant filed a Memorandum of Appeal dated 4th April 2018 setting out the following grounds of appeal:i.The learned magistrate erred in law and in fact in making a judgement against the Appellant by relying on the allegations of the Respondent that he (Appellant) is not the legal occupant of Land Parcel No. Limuru/Kamirithu/T.568 and an allegation that was never proved.ii.The learned Magistrate erred in both law and fact by proceeding with the suit yet the same was an ELC case which she didn’t have jurisdiction to arbitrate on.iii.The learned Magistrate failed in both law and fact by being too biased when at the center of the matter in holding the shallow or no evidence of the Respondentiv.The learned magistrate erred in both law and fact by failing to consider the evidence presented before her by the Appellant and her witnesses and which was the chief evidence to courtv.The learned magistrate erred in law and in fact by admitting the Respondent’s forged documents especially the allocation letters as the chief evidential documents without thorough scrutiny and certification from the authors namely the County Government of Kiambu that has the genuine allocation records reading totally different from what was presented to court.vi.That the learned Magistrate erred in both law and fact by failing to warn herself of the dangers of unfair trial whilst in the center of the dispute.vii.That the learned Magistrate erred in both law and fact by taking into account that the Appellant had proved his case on the balance of probability and not full proofviii.That the learned Magistrate erred in both law and facts by failing to incline on the basis of equity to otherwise allow the Respondent’s free way and will and without considering that the Appellant deserved a fair trialix.That the learned Magistrate failed in both Law and fact in holding the burden of proof lied with the Appellant and who was by then defending the suit other than the Respondent in establishing his claimx.That the learned Magistrate failed in both law and fact by taking into account the failure to proof a case beyond any reasonable doubt by the Respondent warranted any or such a decisionxi.That the learned Magistrate failed in both law and fact in finding that the Respondent proved her case against the Appellant on balance of probability and by making a decision against the Appellant 4.The appeal was canvassed by way of written submissions. The Appellant filed his written submissions dated 18th January 2024, while the Respondent filed written submissions dated 2nd October 2025 Analysis And Determination 5.The Court has considered the original record of the proceedings, the Record of Appeal, and the submissions filed by the parties. Upon perusing the record, the Court notes that a preliminary issue arises which must be determined before consideration of the substantive grounds of appeal. 6.The preliminary issue relates to the jurisdiction of this Court to entertain the appeal. Although neither party raised the issue in the pleadings or submissions, jurisdiction is a threshold question that goes to the very root of a court’s authority to entertain and determine a dispute. It is therefore incumbent upon a court to satisfy itself that it is properly seized of jurisdiction before embarking on the determination of any matter placed before it. Indeed, the issue of jurisdiction may be raised by a party or by the court on its own motion at any stage of the proceedings, for without jurisdiction a court has no power to take any further step in the matter. 7.It is settled law that where a court finds that it lacks jurisdiction, it must immediately down its tools. In Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] eKLR, Nyarangi JA famously stated that:..’jurisdiction is everything and without it a court has no power to make one more step. Accordingly, a court acting without jurisdiction acts in vain’ 8.The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR ,re-affirmed this principle and stated that a court's jurisdiction flows from either the Constitution or legislation or both, and that a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. The Court emphasized that no court may arrogate to itself jurisdiction exceeding that which is conferred upon it by law and that where the Constitution exhaustively provides for the jurisdiction of a court, the court must operate within those constitutional limits. 9.Similarly, in In the Matter of the Interim Independent Electoral Commission [2011] eKLR, the Supreme Court observed that jurisdiction flows from the law and that a court may not confer jurisdiction upon itself through interpretation or innovation where none exists. The Court reiterated that jurisdiction must be found within the Constitution or statute and that a court must exercise only that jurisdiction which has been expressly conferred upon it. 10.The High Court is vested with appellate jurisdiction from subordinate courts. However, that jurisdiction must be exercised within the constitutional framework that establishes specialized courts of equal status to the High Court. Article 162(2)(b) of the Constitution required Parliament to establish a court with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land. Pursuant to that constitutional mandate, Parliament enacted the Environment and Land Court Act which established the Environment and Land Court and defined its jurisdiction. 11.Section 13 of the Environment and Land Court Act confers upon the Environment and Land Court original and appellate jurisdiction to hear and determine all disputes relating to the environment and the use, occupation and title to land. The jurisdiction extends to disputes concerning ownership, occupation, possession, eviction, boundaries, interests in land and all other matters incidental thereto. 12.A perusal of the record herein reveals that the dispute before the trial court revolved around the ownership of Land Parcel No. Limuru/Kamirithu/T.568. The trial court determined the competing claims of ownership, found in favour of the Respondent, ordered the Appellant to vacate the suit property and issued a permanent injunction restraining the Appellant from interfering with the land. The substratum of the dispute is therefore ownership, occupation and title to land. 13.In view of the foregoing constitutional and statutory provisions, this Court is persuaded that the dispute falls squarely within the jurisdiction of the Environment and Land Court. Consequently, any appeal arising from the determination of such a dispute by a subordinate court lies to the Environment and Land Court and not to the High Court. This Court therefore lacks jurisdiction to entertain the present appeal. 14.For the above reasons, there will be no need for this court to address the grounds listed in support or opposition to the appealDispositiona.The appeal is hereby struck out for want of jurisdictionb.The Respondent is awarded costs of the appeal DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE, 2026 VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORMKENNEDY KANDETJUDGEIn The Presence Of:Appellant Present In PersonNo Appearance For The RespondentCourt Assistant: Aggrey Ochieng