Intercountries Importers and Exporters Ltd v Total Security Limited & 7 others [2018] KEELC 4501 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MILIMANI LAW COURTS

ELC APPEAL NO. 10 OF 2017

INTERCOUNTRIES IMPORTERS

AND EXPORTERS LTD................................................APPLICANT

=VERSUS=

TOTAL SECURITY LIMITED & 7 OTHERS.....RESPONDENTS

(Being an Appeal from Business Premises Rent Tribunal Reference No. 902 & 903(consolidated) of 2016 at Nairobi given by Mbichi Mboroki Chairman,Business Premises Tribunal on the 10th Day of February ,2017)

=BETWEEN=

TOTAL SECURITY LIMITED..........................1ST RESPONDENT

LEMOLOK LIMITED.......................................2ND RESPONDENT

=VERSUS=

TELEPOSTA PENSION SCHEME

REGISTERED TRUSTEES & 5 OTHERS....1ST RESPONDENTS

RULING

1. The Appellant/applicant filed a Notice of Motion dated 19th April 2017, in which it seeks the following orders.

1) That the Appeal be admitted.

2) That this  Appeal be heard by the Presiding Judge in High Court Civil Suit No.1400 of 2004 between Teleposta Pension Scheme Registered Trustees and Intercountries  Importers and Exporters Limited and others.

3) That this Appeal be dispensed with by way of written and oral submissions.

4) That the costs of this application be in the cause.

2. The 1st,2nd and 3rd Respondents did not oppose prayers 1, 3 and 4 of the Notice of Motion. They are only opposed to prayer 2 of the Notice of Motion which seeks that this Appeal be placed before Lady Justice R.E Ougo who heard High Court Civil Case No.1400 of 2004 for hearing and determination. In High Court Civil Suit No.1400 of 2004, the 3rd Respondent had filed a suit against among others the appellant herein which was the 1st defendant over ownership of LR No.209/13238(Originally L R 209/2397). In a judgement delivered on 27th July 2016, the Judge found that the suit property belonged to the 1st defendant which is now the appellant in this suit.

3. The present Appeal arises from the Ruling of the Chairman of the Business Premises Rent Tribunal delivered on 10th February 2017 in which the Chairman of the Tribunal held that Total Security Limited and Lemolok Limited who had filed references to the Tribunal were protected tenants. The appellant now contends that the High Court Judge who heard High Court Civil Case No. 1400 of 2004 dealt with substantial matters in issue and will be best suited to determine this Appeal. The appellant further contends that the leases which are the subject of this Appeal were entered into when the matter before the High Court was still pending delivery of Judgement.

4. The 1st, 2nd and 3rd Respondents have opposed the appellant’s application contending that the Judge who handled HCCC No.1400 of 2004  is functus official and that in view of the Environment and Land Court Act and Gazette Notices issued by the Chief Justice and Rulings of Superior Courts, the Judge has no jurisdiction.

5. I have considered the appellant’s application, the opposition thereto by the 1st, 2nd and 3rd Respondents as well as the submissions by the parties in this matter. There is no doubt that the trial Judge in the High Court is functus officio. The matter is already before the Court of Appeal. The High Court Judge cannot handle this Appeal when she has no jurisdiction to handle matters relating to Environment and Land . The Court of Appeal in the case of Karisa Chengo & Others Vs Republic (2015)eKLR had occasion to deal with the issue of jurisdiction. This matter later went to the Supreme Court where the Supreme Court upheld the findings of the Court of Appeal.

6. I therefore find that the prayer seeking that this case be placed before Lady Justice R E Ougo for hearing has no merit. The upshot of this is that the Appellant/Applicant’s Notice of Motion dated 19th April 2017, is allowed in terms of prayer 1, 3 and 4 save that the oral submissions in prayer 3 shall be limited to highlighting of written submissions if necessary.

It is so ordered.

Dated, Signed and delivered at Nairobi on this 14thday of February ,2018.

E.O.OBAGA

JUDGE

In the presence of ;-

Mr Makobu for appellant and for Mr Wandabwa for 1st and 2nd Respondent

Court Assistant: Hilda

E.O.OBAGA

JUDGE