Dig-Tech Images Limited v Kenya Railways Staff Retirements & Benefits Scheme & Mbukinya Success (K) Limited [2016] KEHC 5358 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  159 OF 2015

DIG-TECH IMAGES LIMITED ………………………………..APPELLANT

VERSUS

KENYA RAILWAYS STAFF RETIREMENTS &

BENEFITS SCHEME ……………………………………….1ST RESPONDENT

MBUKINYA SUCCESS (K) LIMITED………………..…..2ND RESPONDENT

RULING

This appeal arises from the ruling  and order  of  Honourable  Mr  Obulutsa, Senior Principal Magistrate delivered on  14th April 2015  in Chief Magistrate’s  Court at Milimani CC 86 of  2015 wherein the trial magistrate  declined to grant a temporary injunction  restraining the respondents herein from occupying, constructing or interfering  with the occupation of plot LR 209/6502 Muthurwa  estate pending  hearing and determination  of the suit.

In the court below, the appellant herein claimed that it had leased the above named plot  from  the 1st  respondent  Kenya Railways  Staff  Retirements & Benefits  Scheme  through a Temporary Occupation License  (TOL) at an agreed  monthly  rent of kshs 80,000 payable  quarterly in advance and that upon execution of the  said temporary occupation license  it paid shs 518,000 inclusive  of VAT and deposit  for 3 months rent but  that it  was  not granted vacant possession by the  1st respondent and that later the 2nd respondent Mbukinya Success  (K) Ltd invaded the said premises  claiming ownership.  It is upon the above brief facts that the respondent sought legal intervention to get quiet enjoyment and occupation of the demised premises and upon a prayer for injunction being declined by the trial court, they filed this appeal.

From the above  concise facts, no doubt the dispute herein between the parties involves or relates to occupation of land LR No. 20916502 (PART) MUTHURWA ESTATE, NAIROBI.  The appellant claims the right to occupy it having leased it from the 1st respondent whereas the 2nd respondent claims the land was leased to it and that it is in lawful occupation thereof.

A dispute relating to occupation, ownership or title   to land can only be heard and determined by Environment and Land Court as contemplated in Article 162(2) (b) of the Constitution.  Further, Article 165(5) (b) of the Constitution expressly bars the High Court from hearing and determining any dispute reserved for the courts contemplated in Article 162(2) of the Constitution.

In this case, occupation claimed is by way of a lease or rental agreement called temporary occupation license (TOL).  The jurisdiction to hear any such claims as stated earlier is in the preserve of the Environment and Land Court   as established under Section 4 of the Environment and Land Court Act, 2011, with jurisdiction conferred by Section 13(1) thereof.

Furthermore, claims  falling under  the Landlord and Tenants (Shops, Hotels   and Catering  Establishments  Act ( Cap 301)  which would be  heard by  a Business  Premises Rent  Tribunal are appealable  to the Environment and Land Court.  That being the case, I find that this court is devoid of jurisdiction to hear and determine this appeal, which power is vested in the Environment and Land Court.  Accordingly, I hereby direct that this file be placed before the Environment and Land Court for further consideration as the court may deem fit and just.

Orders accordingly.

R.E.ABURILI

JUDGE

19/4/2016