Joel Kipkosgei Sigei alias Joel Sigei v Peter Maina Macharia [2017] KEHC 537 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL CASE NUMBER 346 OF 2010

JOEL KIPKOSGEI SIGEI aliasJOEL SIGEI...............PLAINTIFF

VERSUS

PETER MAINA MACHARIA.....................................DEFENDANT

RULING

1. This suit was filed in 2010 before the establishment of the Environment and Land Court by an Act of Parliament No.19 of 2011. The dispute was about ownership of the suit land Nyandarua/Mbuyu/638 and trespass by the defendant.

The suit was partheard by the Honourable Mshilla J from the 25th November 2014 upto the 29th June 2015 when the plaintiff's evidence was taken and its case closed.

2. The Environment and Land Court started its operations in 2012.  The said court has exclusive original and appellate jurisdiction to hear and determine all land disputes.- See Section 13 of the Act, Cap 12 A.

When Honourable Mshila J was transferred from this station in 2015, I took over the hearing of the suit and the Defendants (DW and DW2) testified before me.

Parties then proceeded to file their submissions.  They are on record.  At the time, I had not realised that the case had been partheard prior to the establishment and operations of the Environment and Land Court court as stated above. Had it been the case,The Chief Justices Practice Directions Gazetted as No. 5178 on the 25th July 2014would have clothed me with jurisdiction to proceed with the hearing and finalization of the case.  As a High Court Judge, I have no Jurisdiction to touch any case on a land dispute, unless subject to the Chief Justice's directions alluded to above.

3. I observed that J. Mshila Judge before whom the plaintiffs case was heard, with great respect, being a High Court Judge had no jurisdiction to start to hear the land dispute, after the Environmental and Land Court became operational.

Now that I have realised my Constitutional limitations, I must down my tools, though too late in the day. See the Owners of Motor Vessel “LilianS” -vs- Caltex Oil Kenya (1989) KLR 1.

4. Consequently, I transfer the suit to the Environment and Land Court for its dealing.

I direct parties to take directions in the Environment and Land Court on the way forward, that is to say, whether to have the evidence taken before the High Court adopted, or for the start of the case denovo, the Environment and Land Court Judge will no doubt give the appropriate directions in the circumstances.

This court apologises profusely to the parties for the oversight both by their Advocates, myself and my predecessor Judge Mshilla.

Dated and Signed this 29th Day of September 2017.

J.N. MULWA

JUDGE

Delivered on this 12th Day of October 2017.

R. LAGAT KORIR

JUDGE