Dennis Emmanuel Bwire v Selina Bwire,Dennis Bwire,Evans Bwire,Oscar Bwire,Kevin Bwire & Gabriel Bwire [2013] KEHC 1014 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO.39 OF 2013.

DENNIS EMMANUEL  BWIRE …………......………………..APPLICANT

VERSUS

1. SELINA BWIRE       ]

2. DENNIS BWIRE      ]

3. EVANS BWIRE       ]……………………….....… …..RESPONDENTS.

4. OSCAR BWIRE      ]

5. KEVIN BWIRE        ]

6. GABRIEL BWIRE   ]

JUDGMENT.

The Applicant, Dennis Emmanuel  Bwire, filed the notice of Motion  dated 5. 6.2013 against Selina Bwire ,Dennis Bwire,Evans Bwire,Oscar Bwire, Kevin Bwire and Gabriel Bwire,hereinafter referred to as 1st to 6thRespondent for the following  two main prayers;

(2)     That temporary injunction be issued pending the hearing and determination of this application, restraining  Respondents from tiling alienating, building /erecting structures, remaining and tampering  with Land parcel Samia/Bukangala/ ‘A’/13.

(3)     That  Busia CMCC. 320of 2012  be transferred to this court for hearing and determination.

The application is based on the four grounds  set out on the application and supporting  and supplementary  affidavits of Dennis  Emmanuel  Bwire , sworn  on 5. 6.2013 and 27. 09. 2013 respectively.

The application  is opposed  through  the replying affidavit  of Selina  Bwire, sworn on 10. 09. 2013 and filed  through  Wanyama and company advocates.

I have carefully considered the grounds on the face of the application, the  contents  of the supporting, supplementary and replying affidavits plus the submissions by both Applicant and Mr. Wanyama for the Respondents and find as follows;-

That  the prayer for temporary injunction  cannot be  presented  and granted  in this miscellaneous application which has no other processes that will remain to be dealt with thereafter. Temporary injunctions are issued in instances, for example, where there is a prayer for permanent injunction that  will be heard  thereafter, or a claim for land, that is to be decided thereafter.  Possibly, what the Applicant needed to do was to first seek for the suit in the Lower court  to be transferred  to this court, and thereafter make  his application  for temporary  injunction. The Applicant  is yet to have the Lower court matter  transferred to  this court and therefore prayer 2 of his application has no basis and must fail.

That  the Chief Justice  practice direction of 9. 9.2012 allows the Magistrate’s courts to continue  dealing with environment and land cases subject to pecuniary jurisdiction. Practice direction  number. 7 states;-

‘’ Magistrates Courts shall continue to hear and determine all cases relating to the environment and the use and occupation of, and title to land (Whether pending or new) in which the courts have the  requisite  pecuniary jurisdiction.’’

This  position has been reinforced by the decisions of this court in the following matters among others;-

John Nakhabi Okelo –vs- Oburu NelsonBusia H C. Misc. App. No.205 of 2012.

Sarah Chelagat Samoei –vs- Musa Kipkering Kosgei & Another .Eldoret E & L C Misc. App. No. 10 of 2013  and

Edward Mwaniki Gaturu & Another  -vs- Attorney General & 3 others (2013)eKLR.

That  in case the lower  court was to find that a matter was filed in a court without jurisdiction, then the decision  in the case of Wainaina Njehia –vs-  Barclays Bank of Kenya (2006)eKLR will guide the direction to take . In that case an application seeking to transfer a suit whose value was Kshs.1,600,000/= from the Magistrate’s court which did not have pecuniary jurisdiction was dismissed as the matter had been filed in a court without  jurisdiction and therefore  was a nullity ab initio. This position had earlier been clearly  captured in the words of Nyarangi J.A, in the case of The Owners of Motor Vessel  ‘’Lilian S’’ –vs- Caltex Kenya Ltd (1989) K.L.R when  he observed;

‘’   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 it’s  tools in respect of the matter  before it  the moment it holds the opinion that it is without jurisdiction.’’

For reasons set out above, l see no merit in prayer 3 of the application seeking to transfer the Busia CMCC. No. 320 of 2012  from the  Lower court to this court.  This is because the  practice directions  issued  by the Chief Justice  and the decided cases cited  above shows the Lower court is clothed with powers to deal with environment  and land cases  subject to pecuniary jurisdiction.  The Applicant's application dated 05. 06. 2013 is therefore without merit and is dismissed with costs.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 27TH DAY OF NOVEMBER, 2013.

IN THE PRESENCE OF;