Abdi Kadir Hussein v Moses Kipkirui Koros & Nancy Cherono Bunei [2016] KEHC 5304 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  458 OF 2008

ABDI KADIR HUSSEIN…………………………………………….PLAINTIFF

VERSUS

MOSES KIPKIRUI KOROS ……………………...………….1ST DEFENDANT

NANCY CHERONO BUNEI…………………………………2ND DEFENDANT

TELEPOSTA PENSION SCHEME

REGISTERED TRUSTEES………………….…….1ST INTERESTED PARTY

PETER KINGORI MAINA…………………….….2ND INTERESTED PARTY

ESTHER ONSEMBE……………………………….3RD INTERESTED PARTY

AMOS K.C. KALE MAINA & STEVE K. BUNDOTICH

T/A KALE MAINA & CO. ADVOCATES…......…….4TH INTERESTED PARTY

RULING

This suit was instituted vide plaint dated 16th October 2008 on the same day.  The plaintiff’s claim against the 1st and 2nd defendants is eviction from land No.  LR  Nairobi/Block 34/160 unit No.2 ;a declaration that the  1st and 3rd defendants  occupy the suit  premises illegally; costs and any other remedy deemed  just and  expedient .

Albeit  the suit  was instituted  before 2010 when the  new constitution  was promulgated, Article  162(2) (b)  of the Constitution  is clear that disputes  relating  to occupation, ownership or title  to land shall be heard  and determined by the court  contemplated  therein.  In addition Article 165(5) (b) of the Constitution expressly ousts the jurisdiction of the High Court from hearing and determining disputes preserved for the court contemplated in Article 162(2) of the Constitution.

That being   the case, it  is crystal clear that  the jurisdiction of the this  court is ousted  and vested  in the Environment and Land Court  as established   under Section  4 of the Environment and Land Court  Act, 2011. Section 13 (1) of the said Act spells out the jurisdiction of the court. Under Subsection (7) thereof, the orders that the court is empowered to make are stipulated.

For the above   reasons, and as jurisdiction is everything, without which, this court would be acting in vain. The matter is not part heard to invite the discretion of this court to continue with it under Section 22 of part 5 of the transitional and consequential provisions of the Constitution on administration of justice. Furthermore, there is established a court of competent jurisdiction, the ELC which is fully operational and therefore the transitional period id spent.  Accordingly, I must down my tools and say no more thing than refer this matter to the court with competent jurisdiction to hear and determine this dispute and   that court is the Environment and Land Court, Nairobi.

Orders accordingly.

R.E. ABURILI

JUDGE

20/4/2016