Dekoma Slaughter House Meat Vendors & Livestock Dealers Co-Operative Society v Maina Mamo Mato [2015] KEHC 7720 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL   APPEAL NO.  658 ‘A ‘OF 2012

DEKOMA SLAUGHTER HOUSE MEAT  VENDORS & LIVESTOCK

DEALERS CO-OPERATIVE SOCIETY ……...............APPELLANT

VERSUS

MAINA MAMO MATO…………………….........….RESPONDENT

RULING

The application before me for determination is dated 1st July 2015.  It seeks for stay of further proceedings in Nairobi Co-Operative Tribunal Case No. 469 of 2010 pending hearing   and disposal of the Notice of Motion application dated 20th November 2013.

The application  is premised on the grounds  that the Notice of Motion   dated  20th November  2015  was scheduled  for hearing  on 30th June 2015  but was not  listed; The Co-operative Tribunal Case was  scheduled for hearing  on 9th July 2015  (now 20th July 2015; if  the Tribunal’s case  proceeds  to hearing  the appeal  herein will be rendered  nugatory; it is the  registry that erred  in failing  to list the  matter for  hearing; and that the  applicant will be greatly prejudiced  if the tribunal’s case  proceeds  for hearing before this appeal  is heard  and determined  because they  will be forced  to take  part in the proceedings for a claim of land without a sale agreement  as  required by law.

The application is supported by sworn affidavit  of Ochieng Ogutu advocate, which depositions mirror grounds replicated above in support of the Notice of Motion.

The said  application dated  1st July 2015 was canvassed  before me with Mr Cohen counsel for  the appellant, applicant , relying  on the grounds  and supporting affidavit  and annexture 00-1  which is a letter to the Deputy Registrar  dated 1st July 2015  complaining  that the application was not listed for  hearing on 30th June 2015  as scheduled.  Mr Cohen  added that  he matter before  the co-operative  tribunal  is due for  hearing  on 20th August 2015  and that  if the matter  is heard, then this appeal  will be rendered  nugatory .  He submitted that the court has the power to safeguard its orders and to ensure   that the appeal is not futile.  He  also submitted that  the duty  of this  court is  to safeguard  the rule of law  since the appeal herein challenges  the  ruling of the tribunal on a point of law  hence if the tribunal continues  to hear  and determine  the dispute, then the appellant/applicant shall be prejudiced  and  will suffer  injustice .  Further, Mr Cohen submitted that an appeal is a right which should not be violated.  The appellant contests an agreement for sale and that cross examining witnesses on the same does not help.

In opposition to the Notice of Motion  dated 1st July 2015 the respondent filed  grounds of opposition dated 21st July 2015  contending   that the application lacks merit, violates  Article 159(2) (b) of the Constitution  by seeking to delay the ends of  justice, an abuse of the court process; based  on a misapprehension of law; the  appellant  has a chance to cross examine the  respondent  and his witnesses  at the  hearing; the appellant’s preliminary objection  was heard, and  properly dismissed; stay  of proceedings delays the expedition  conclusion  of the matter; and the appeal is contrary to judicial process expressed   in Article 159(2)(d)  of the Constitution.

In his  submissions, Mr Kinyanjui advocate  for the respondent stated that  the motion  was a backdoor attempt to amend the  earlier  notice of motion dated  20th November 2013  hence an  abuse of the court process.

Mr Kinyanjui also submitted  that the  earlier Notice  of Motion  dated 20th November 2013  did not have  any prayer for stay of proceedings which prayer  had now been  sneaked  in the present motion, which in  effect was seeking  to split stay orders and as  a result, waste judicial time.

In his view, stay orders under Order 42 of the Civil Procedure Rules must be sought   with expedition.  He explained that in this case, the appeal  was filed on 3rd December 2012  out of time  and that it took the appellant  over 2 ½ years to seek for stay.  That the 2013 application was made almost one year after the ruling. Mr Kinyanjui  further submitted that it had not been shown what  loss the  appellant was likely to suffer  if the application was not granted since the said  case before  the tribunal was  scheduled for hearing on 9th July 2015 and no  stay was  obtained.  He maintained that no prejudice would be occasioned since the appeal is against an interlocutory application ruling.  That more injustice will be occasioned if tribunal proceedings are stayed since the appeal was filed in 2011.

In rejoinder Mr Cohen  for the applicant  submitted that the application was not  an abuse of the court process  as the same had  not been proved to be  frivolous, vexatious  and  or intended  to annoy.  The applicant’s counsel further submitted that the matter was not for striking out the appeal and that the contested contract was not signed.  He therefore urged the court not to allow tribunal proceedings and appeal to go on concurrently.  Further, he maintained that the appeal was filed in time within 30 days and urged the court to allow the application.

None of the parties relied on any case law to support their respective positions.

I have carefully considered the application by the appellant/applicant and the opposition thereto by the respondent. The history of this matter is critical to the determination of this application.  The record  shows that vide a statement  of claim dated 21st December 2010, the  claimant  Maina  Mamo Mato filed  a claim  against  the appellant  herein Dekoma Slaughter House, Meat Vendors & Livestock Dealers  Co-operative  Society before the Nairobi Co-operative  Tribunal  on 22nd December 2010, claiming  for entitlement  to occupation, possession and  ownership and or mesne profits  and damages for being  denied such possession ownership and or use  of plots purchased  at a consideration from LR 4148/166 Original 4148/11/137, plots  122,606,611 and 612 paying kshs 149,000 out of kshs 350,000.

The respondent herein was allegedly  a member  of the appellant Co-operative  Society and although he did file  a claim  before the Environment  and Land Court  vide ELC  258 of 2010, he   withdrew  it as  Cap 490 mandates parties  to a dispute involving  members of  a co-operative society to file the  dispute before the Co-operative tribunal.  The respondent therefore sought for declaratory orders, an injunction and mesne profits against the appellant herein.

The appellant then  raised a preliminary  objection to the claim by the respondent  before the Co-operation tribunal, seeking  the suit/claim to be struck out on the  grounds that  the claim offends  Section  3(3) of the Law of Contract Act Cap 23 Laws of Kenya  which require that  a contract  for the disposition  of an  interest  in land shall be in writing  and signed  by all the  parties  thereto and  the signatures  thereof  attested  by a witness  who is  present  when the  contract  was  signed  by such party, otherwise  no suit lies.

The Tribunal heard the preliminary objection which was opposed and by a ruling delivered on 2nd November 2012, it dismissed the preliminary objection with costs to the respondent /claimant.  It is that  ruling/order which gave  rise to this appeal and hence the  application for stay of proceedings  of  the tribunal  pending  hearing and  determination of this appeal dated  20th November 2013  filed on 27th November  2013  which has  never been heard and determined  by this  court.

According to the appellant, there  is no sale  of plot/land  agreement  in writing  between the appellant and respondent  and  witnesses , as required  by the provisions  of Section  3(3) of the Law  of Contract  Act.

The above  issues invite this court to  first  and foremost, inquire the jurisdiction of this court to hear  and determine this appeal, leave alone the application for stay of proceedings  pending  before the  co-operative  tribunal pending the hearing and determination of  the application  dated 20th November 2013  and or the appeal herein.

I am conscious  of the fact that  the parties  advocates  did not  raise issues  of jurisdiction  of this court  and neither  did they rely on  any case law  to support  their respective  positions.

Nonetheless, this court is duty bound to, before embarking on the merits of the application, to determine its jurisdiction.  As was held  in  the case of owners of the Motor  Vessel “ Lilian S” v Caltex Oil(K) Ltd (1989) KLR 1: “ By jurisdiction is meant  the authority which  a court  has to decide  matters  that are before  it or take cognizance of matter presented  in a formal way for its decision.  The limits or this authority are imposed by statute Charter or commission under which the court is constituted and may be extended or restricted by the like means.  If no restriction or limit is imposed the jurisdiction is said to be unlimited.  A limitation may  be either  as to the  kind and nature  of the  actions and matters of which the  particular  court has cognizance  or as to the area  over which the jurisdiction  of an inferior  court or tribunal (including an arbitrator) depends  on the existence of a particular state of facts in order  to decide  whether  it has jurisdiction, but, except  where the court or tribunal has been given power to determine conclusively  whether  the facts  exist  where the court takes  upon itself  to exercise a jurisdiction  which it  does not  possess, its decision  amounts to nothing. Jurisdiction must be acquired before judgment is given …………”

Thus, without jurisdiction, a court of law acts in vain by purporting to determine a matter on dispute between the parties and in effect, amounts to nothing.

From the claim pending in the Cooperatives Tribunal, this court finds that the claim is over ownership, occupation/possession and or title to land.  The preliminary objection  which  gave  rise to  the  decision  which is  subject  of this appeal  and application, was challenging the validity of the contract between the parties  on account that  such contract   was in contravention of the Provisions of Section 3(3) of the Law  of Contracts Act, which espouse that no suit can be  founded on a contract  for disposition  of an interest  in land unless it is  in writing  and witnesses in writing. The respondent herein was claiming that he owns the subject land having bought it.

The above  position being the  prevailing  legal and factual position, my attention has been  drawn to Article  165(5) (b)  of the Constitution  which  bars the High Court  from  hearing and determining  disputes which  are preserved  for the courts  contemplated  in Article 162(2) (b). The Constitution  contemplated  the establishment of courts with specialized  jurisdiction to hear and determine disputes relating  to the Environment and  the use and occupation  of, and  title to, land.  Article 162(3) mandates Parliament to enact legislation to determine the jurisdiction and functions of the said court contemplated in Clause 2 of Article 162.

In compliance with the above constitutional provisions Parliament did in 2011 enact the Environment and  Land Court Act.  Section (4) thereof establishes the Environment and Land Court. The said Act under Section 13(1) confers jurisdiction on the court, both original and appellate.  The court has the power to make orders including declaratory, damages, specific performance injunctions, among others.

The above being  the situation, it is  apparently clear that  this court’s jurisdiction to  hear and determine  the dispute  herein on appeal   is expressly  ousted  by the Constitution and an Act  of Parliament, the Environment  and Land  Court Act, 2011.

Albeit Section 22 of part 5  of the Transitional  and consequential  provisions of  the Constitution   on Administration of Justice makes provision that any judicial  on the effective  shall continue  to be heard and determined   pending  the establishment of the corresponding   court or as may be  directed  by the Chief Justice  or Registrar  of the High Court, I note  that the above provisions  were only applicable  in the transitional period  prior  to the establishment  and operationalization  of the Environment  and Land    Court which was  established in 2011 and fully operationalised  in 2012  with the  appointment  of judges  to preside  over the  said court.

This court also noted that prior  to the respondent herein filing the  claim before the Co-operatives  Tribunal in 2010 it had vide ELC  258/10 filed a similar  claim in the High Court  before the effective date on 27th May 2010  over the same  subject matter (see page 63  of record  of appeal) which  suit was withdrawn prior to the filing of the claim before the  Cooperatives tribunal.

It therefore follows that albeit the claim was filed during the transitional period, by the time the tribunal was rendering its decision /ruling on 2nd November 2012, the  Environment  and Land Court  was  fully established  and therefore  any appeal arising  from the  order  or decision of the  tribunal could only lie in the Environment  and Land Court  under section 13(1) of the Environment and Land Court Act and not   in the High Court.  The  Environment  and  Land Court  came into actual  operation on 5th November  2012  when the  judges  of that court were sworn into office and  posted  or deployed  to various  stations after  their gazettement  on 3rd  October  2012 vide G/N 14346.

A court of law  can only operate within its limits  conferred  by the Constitution or legislative  enactment.  In Samuel Macharia & another v KCB the Supreme Court was clear that:

“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 either 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 respondent  in his submission that the  issue  as to whether  a court of law has jurisdiction  to entertain  a matter before  it, it is not one or mere  procedural technicality; it goes  to the very  heart  of the matter, for  without  jurisdiction the court cannot entertain any proceedings.

………where the constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the Constitutional limits.  It cannot expand its jurisdiction through judicial craft or innovation.”

In addition, Article 2(2) of the Constitution is emphatic that:

“No person may claim or exercise state authority except as authorized under this constitution.”

It therefore follows  that the jurisdiction  of this court (High Court) to hear  appeals  where the  primary dispute  relates  to the Environment, use of, occupation  or title  to land was effectively  ousted  by the  operationalization of the Environment and Land Court.

Consequently, I find that this court has no jurisdiction to hear and determine this appeal.

I would therefore proceed to strike it out.  However, as  the said appeal  was lodged  barely one month after the  swearing in  of the judges  of the Environment  and  Land  Court, it  follows  that the Environment  and Land Court was still in transition, with the newly appointed  judges still trying  to find office space  and a bearing.  The  High court  had not  and todate, it has not fully set up a clearing house to  sort  and transfer  all the Environment and Land Court matters to the Environment   and Land Court where  they ought  to be domiciled  though initially filed in this court.  On many occasions and nearly on a daily basis, this court has had to relocate matters to Environment and Land Court for similar reasons.

The interest of justice  therefore  in this  case dictates that I do not  strike  out the  appeal and application  as filed  and I  accordingly direct  that the  file  herein in its entirety be and  is hereby re-located to the Environment and  Land Court  forthwith  for further  directions  as   to the disposal  thereof  as the Court may deem fit.

Dated, signed and delivered in open court at Nairobi this 18th day of August, 2015.

R.E. ABURILI

JUDGE

18. 8.2015

Coram R.E. Aburili J

C.C. Adika

No appearance for the appellant/applicant

No appearance for the respondent.

Court-   Today’s date was given to both parties in open court after the hearing of the application dated 1st July 2015 interpartes on 22nd July 2015.

The court  considered  the plea by  the applicant that the main dispute  is due  for  hearing before  the Co-operatives  Tribunal on       20th August 2015 and that  it was important  to have this  ruling  which regards  whether or not  there should  be stay  of the proceedings before the tribunal delivered before  20th August  2015.

The court has been ready since 10. 00am as scheduled but neither party has appeared.  The registry too confirms that no inquiries have been made by either party to this  ruling.  Albeit the matter was not listed, the date was taken in court which was on vacation and only returned to deliver this ruling as assured to the parties.  Accordingly, I hereby read and pronounce the ruling in open court as scheduled.

File to be taken to the registry for perusal by the parties at their own appointed time before typing of this ruling and transfer to the Environment and Land Court as directed herein.

R.E. ABURILI

JUDGE

18/8/2015