Africality CIO & Africality Mararal Safari Lodge Limited v Samburu County Government [2015] KEHC 7687 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

MISCELLANEOUS APPLICATION NO.  403 OF 2015

AFRICALITY CIO …………………………………………..1ST APPLICANT

AFRICALITY MARARAL

SAFARI LODGE LIMITED ………...……………………….2ND APPLICANT

VERSUS

SAMBURU COUNTY GOVERNMENT …...……………….RESPONDENT

RULING

By a Notice of Motion dated 15th September 2015 and filed in court the same day under certificate of urgency, the applicants, Africality CIO and Africality Maralal Safari Lodges Ltd sought from this court orders:

1.    Spent

2.    That an order of injunction directed  at  the respondent to desist from evicting the applicant or  in any way interfering  with the quiet possession of the suit  premises that is say Maralal  Safari Lodge within Maralal  Wildlife  Sanctuary  an approximate area of about  1235 acres  and as defined  in the Kenya  land registry on map sheet No. 216/51 issued on 23rd December 1988 as well as  the entire collection of  assets, fixtures and movables within the  said premises pending interpartes  hearing  of this application.

3.    That the Officer Commanding   Station Maralal does assist in the execution of the above order.

4.    That upon granting of the orders sought, this court do order the dispute be referred to arbitration in accordance with the Head of Terms governing the relationship between the parties herein.

5.    That costs of the application be borne by the respondent.

The application is brought under the provisions or Order 40 Rules 1, 2 of the Civil Procedure Rules 1A, 1B, 3A of the Civil Procedure Act Section 7(1) of the Arbitration Act and all other enabling provisions of law.  The said application against   the Samburu County Government is predicated on the grounds that:

1.    The applicant  herein entered  into an agreement of lease with  the respondent over  the suit property;

2.    The applicant took over  management  of the conservancy and invested  huge capital  amounts  to rehabilitate  and ensure  the business was a  going concern  within the terms of  the agreement.

3.    The respondent suddenly through its lawyers issued a five day eviction notice on 11th September 2015 to the applicant.

4.    As per the agreement between the parties, the term of the lease was to be ten years and any dispute was to be referred to arbitration.

5.    It is in the interest of justice that the orders sought be granted any damage suffered can be remedied by an award of costs.

6.    On the contrary, the applicant stands to suffer irremediably if the orders sought are not granted.

The said application is further supported by the affidavit sworn by Humperdinck Jackman the Chairman and founder of the applicant organization and company, reiterating the grounds and annexing the agreement between the parties hereto over the subject premises.  He avers  in addition to the grounds that they have  expended  over kshs 20,000,000 renovating  the premises but that the  respondents  have changed  their mind and attitude towards the  company and are engaged in  a smear campaign against  the  applicants  including  inciting  members  of the local community  against  the applicants.  Further  that efforts to execute  a lease with the tourism department  of the County Government   have been futile  only to  receive a letter on 29th July 2015  indicating  that the intended  lease   has to be subjected to procurement  rules and the respondent’s  officials  taking inventory of the  property  and inspecting  the premises.

Further, that  despite protests  by the  applicant, the respondent   have  given them 5 days notice  to vacate the premises  yet they owe the  applicant kshs 705,660 in respect of  invoices  for meals  and services  provided.

The applicant further avers  that under  the Heads of Terms, any dispute  between the  parties is to be  referred to arbitration and that they stand  to loose  irremediably  if  evicted owing  to huge capitals  investments made and good  reputation.  The deponent is also apprehensive of his personal safety as a result of the threat of eviction.

The matter was placed before me as vacation duty judge on 15th September 2015 and I did   certify it as urgent for consideration during the vacation.  I also granted   status quo prevailing to be maintained until today 21st September 2015 and directed the applicant to serve the respondent’s forthwith for interpartes mention today.

This 21st September the parties advocates appeared before me, with Mr Macharia Ngari appearing for the respondent and Mr Wambugu advocate representing   the applicant. The parties advocates agreed to proceed with the hearing of the application expeditiously.

Mr Macharia intimated to court that their client had not been served with the application as directed by the court.  He also  protested the jurisdiction  of this court  maintaining  that the dispute  relates  to occupation of land which dispute  is preserved  for the jurisdiction of  the Environment and Land Court  by dint of Articles 162(2) and 165(5) of the Constitution, and therefore the High Court    has no jurisdiction  to hear and determine  such dispute.  He urged the court to discharge the orders made on 15th September as they were made without jurisdiction.

In a brief  rejoinder, Mr Wambugu  for the applicant contended that  they  only extracted the orders on 17th September 2015  and could not serve the respondents  over the weekend  hence they  only  informed counsel for the respondent  of the existence of  the orders.

On the issue  of jurisdiction, the  applicant’s  counsel submitted that  the issue  cannot be determined  now  as it requires  an examination of facts to  be ascertained   by affidavit  evidence and that this  was a matter of  arbitration hence the  court  has jurisdiction   to grant  interim relief under Section 7(1)  of the Arbitration Act.

The objection to the jurisdiction of this court is contained in ground No. 1 of the grounds of objection filed on 21st September 2015.

My rendition on the above submissions is as follows:

That  whenever  the issue of  jurisdiction  is raised in a suit, the court  must first deal  with that  issue before  it can embark on any other  determination on the merits  or otherwise  of the suit or matter before it.

In my view, the issue of jurisdiction  is not  a procedural issue  but a substantive  issue  and once  raised  as a preliminary issue, it must  be determined  forthwith.  A  preliminary  objection on jurisdiction of the court is a point  of law when taken  would dispose the entire suit  or matter  and in this  case therefore, I am satisfied  that the respondent’s preliminary objection  fits the definition of a preliminary objection  as espoused in the leading case  of Mukisa  Biscuits Manufacturing  Company Ltd V West End  Distributors  Ltd (1969) EA 696 wherein  law JA stated that thus, of a preliminary objection:

“ so far as  I am aware, a preliminary  objection consists of point of  law which  has been pleaded, or which arises  by clear  implication out of pleadings, and which if  argued as a Preliminary Objection  may dispose  of the suit.  Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

Sir Charles Newbold President in the same judgment stated:

“A Preliminary Objection is in the nature of what used to be a demurrer.  It raises  a pure  point   of law which  is argued  on the assumption that all the  facts pleaded  by the other  side  are  correct.  It cannot be raised if any fact has to be ascertained or if what I sought is the exercise of judicial discretion.”

The respondent in this matter, in seeking the court to strike out the application as filed has not sought judicial discretion of this court.  They seek to determine the issue of whether the court has jurisdiction and therefore whether there is a cause of action capable of being adjudicated upon by this court in limine.  It is well taken because if the Preliminary Objection succeeds, this court will be saved the cost of a lengthy trial and attendant expenses on either side.

The issue  of jurisdiction  as I have  stated  before  is a substantive  issue  of not only the law, but of  the Supreme Law of the land, the  Constitution.  Without jurisdiction, no court or tribunal can clothe itself with the power to hear and determine disputes before the court or tribunal.

The locus classicus  in jurisdiction  is the  case of Owners of  the Motor  Vessel “ Lilian S” v Caltex Oil (K) Ltd  (1989) KLRwhere Nyarangi JA held, borrowing  from the writings of  John Beecroft Saunders  in a treatise  which is no longer published   headed  “Words   and phrases legally defined VOL 3:1-N page 113.  The Learned Judge of Appeal stated:

“ I think that it is reasonably plain that  a question of jurisdiction ought to be raised  at the earliest  opportunity and the court  seized  of the matter  is then  obliged  to decide  the issue right away on the material  before it.  Jurisdiction is everything without it; a court has no power to make one more step.  Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.  A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

I agree with the above position entirely and add that jurisdiction is a creature  of the Constitution or other  written law.  It cannot be clothed or conferred by  parties  and neither   can the court be allowed  to arrogate itself  jurisdiction that it  does not possess.

Therefore the question for my determination is, does this court have jurisdiction in this matter to grant the injunctive orders sought  and or to refer the dispute  to arbitration?

The dispute  as can be deduced from  the Notice  of Motion and affidavit and annextures of the applicant is over the occupancy of and management  of  1235 acres  of land wherein the premises  of Maralal Safari Lodge within Maralal Wildlife  Sanctuary on LR 216/51 is situate.  The applicants  claim that  they manage   the conservancy and  the Safari  Lodge and that  the  respondent  has issued  them with  a notice  of 5 days  to vacate.  The applicants have sought injunctive orders to issue against the respondents County Government of Samburu restraining it from evicting the applicants from the conservancy pending   referral of the dispute to arbitration as per the Terms of the Agreement between the two parties.

From the foregoing and pleadings as instituted by way of Notice of Motion, filed in court on 15th September, 2015, no doubt, the dispute  herein is over the occupation and management of not only the  Maralal Safari Lodge  but of  the entire 1235 acres  of land described   in the Heads of Terms  Agreement wherein a formal lease  of 10 years  was anticipated to be  executed  between the parties.

In my humble view, that dispute, notwithstanding the provision for arbitration  within the agreement falls  within the purview of the  Environment  and Land  Court by  dint  of Section 13(1) & (7) of the  Environment  and Land Court  Act, 2011.  That  jurisdiction  of the said court is  donated by Article  162(2) (b) of the  Constitution which clearly enacts that  disputes relating to environment, occupation, use of and  title  to Land shall be  heard and determined  by a court contemplated  by Article 162(2)(b) of the Constitution.

In 2011, Parliament enacted the Environment and Land Court Act  and  Section 4 thereof established  the Environment and Land Court with  Section 13(1) spelling  out the  exclusive  original and appellate  jurisdiction  of the court.

Among the orders that the court is to make include injunctions, Declaratory orders, damages, compensation, prerogative orders, specific performance   of a contract over land among others. The provisions of the Land Act and Land Registration Act too are clear that disputes relating to dealings or dispositions in land shall be heard and determined by the Environment and Land Court

In addition, Article 165(5) (b) of the Constitution  expressly bars the High Court  from hearing  and determining  disputes  that fall in the  jurisdiction  of the courts  contemplated  in Article  162(2)  of the Constitution thus - the Environment  and Land Court and Employment and Labour  Relations  Court; and those matters whose exclusive jurisdiction is reserved for the Supreme Court.

That being the case, this court has no jurisdiction to entertain this matter by whatever name it is called and for whatever long or short period.  To do so would  be usurping  powers  of another superior court  established  under the  Constitution  which in itself  would be acting contrary to Constitutional  dictates.  I therefore agree  with the submissions  of counsel for the  respondent Mr Macharia that the exparte order granted under certificate  of urgency on 15th September 2015  were  made without jurisdiction and add that  the dispute  herein was  filed before  a court that  has no jurisdiction  to hear and determine  and or  make the  orders that  were sought .  The same  orders  can be sought  and obtained  before an appropriate  court that  has jurisdiction  since it is  a fully operationalised  court, unlike  if it was  still in transition in which case part 5  section 22 of the Transitional and Consequential provisions of the Constitution would be applicable.

The upshot of all the above is that I allow the Preliminary Objection raised by Mr Macharia Ngari.  I proceed to strike out the Notice of Motion dated 15th September 2015 and also discharge the temporary interim orders issued on the same day which were in any event lapsing today. I order that each party bears their own costs of the matter herein.

Dated, signed and delivered in open court at Nairobi this 21st day of September 2015.

R.E. ABURILI

JUDGE

21. 9.2015

Coram R.E. Aburili J

C.A. Adline

Mr Wambugu for the applicant

Mr Macharia for  respondent

COURT -   Ruling read and delivered in open court  at 2. 30 pm as scheduled.

R.E. ABURILI

JUDGE

21/9/2015

Mr Wambugu - I seek leave to apply.

Mr Macharia – I appreciate the speedy manner in which the court has considered this matter.  I pray for a copy of the ruling.

COURT- The applicant to make a formal application for leave to apply as they are not barred.  The ruling and all the proceedings herein to be typed and availed to the parties advocates upon payment of the requisite fees.

R.E. ABURILI

JUDGE