Kitavi & another v Ondiek [2023] KEHC 25236 (KLR)

Kitavi & another v Ondiek (Civil Appeal E074 of 2023) [2023] KEHC 25236 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25236 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E074 of 2023

MW Muigai, J

November 8, 2023

Between

Jane Mutile Kitavi

1st Appellant

Cosmas Ndeti

2nd Appellant

and

Morris Ondiek

Respondent

Ruling

Background 1. On the court record is a Memorandum of Appeal dated and filed on 13th April,2023, therein, the Appellant appealed against the decision of the Business Premises Rent Tribunal at Nairobi by the Hon Patricia May delivered on 12th April, 2023 in the BTRT Cause No. E915 of 2022 on the following ground that:1. The Tribunal misdirected itself in concluding that a Landlord Tenant relationship existed between the Appellants and the Respondent when the same had extinguished.2. The tribunal had no jurisdiction to handle the matter, noting that the Reference was filed on 11th October,2022 after the lapse of the Tenancy Agreement upon notice to vacate by the Respondent.3. The tribunal delivered a decision without addressing the facts and the issues and failing to give the ratio decidendi.4. The tribunal erred in law and fact by condemning the Appellants to pay costs.

2. The Appellant sought the following Orders from this Court that:1. The decision of the Tribunal and the resultant order be vacated and replaced with an order dismissing Reference.2. The Respondent to pay the costs of this Appeal and costs of the Preliminary Objection in the Tribunal.

Notice Of Motion 3. Vide a Notice of Motion under a Certificate of Urgency dated 26th June, 2023 and filed in court on 30th June,2023 brought under Sections 1A, 1B & 3A of Civil Procedure Act, Section 15 of the Landlord and Tenant (shops, hotels and cartering establishments) Act, Articles 165 (5) (b) & 162 (2) of the Constitution of Kenya 2010, Order 2 Rule 15.

4. The Respondent/Applicant sought the following Orders That:1. Spent.2. The Memorandum of Appeal dated 13th April,2023 and filed on the same day be struck out for want of jurisdiction and all the consequent orders in this matter be automatically discharged.3. The costs of this application and appeal be borne by the Appellants.4. The Honorable Court does issue any other reliefs it may deem just and expedient in the circumstances.5. Grounds upon which the Application is premised are on the face of the Application herein.

Supporting Affidavit 6. The said application is supported by an affidavit dated 26th June,2023 and file in court on 30th June,2023 sworn by Morris Ondiek, the Applicant herein wherein, he deposed that the Appellant is currently enjoying orders of stay of the proceedings and final orders of the Business Premises Rent Tribunal for an indeterminate period of time yet the orders of stay he is enjoying are irregular and the same need to be urgently discharged since the High Court lacks jurisdiction to entertain an appeal from the judgment and/or ruling of the Business Premises Rent Tribunal as is the case in the instant appeal.

7. He deposed that he is advised by his Advocate on record that the Appellant having been aggrieved with the ruling and final determination of the Business Premises Rent Tribunal ought to have appealed to the Environment and Land Court and not the High Court. further, he opined that he is advised by his Advocate on record that the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act provides under Section 15 that appeals from decisions of the Business Premises Rent Tribunal shall lie to the Environment and Land Court Act.

8. It was his position that the entire appeal merits dismissal with costs with a consequent discharge of all existing interlocutory orders as this court lacks jurisdiction to entertain this appeal. He lamented he is advised by his Advocate on record that by law, a Notice of Preliminary Objection can be raised at any stage of the Proceedings and indeed the current objection to jurisdiction has been raised quite early before the appeal is admitted.

Replying Affidavit 9. The Application is opposed by the Replying Affidavit dated 12th July,2023 and filed in court on 13th July,2023 sworn by Cosmas Ndeti the Appellant herein, wherein he deposed that he is advised by his Advocate on record thata.The jurisdiction of the High Court to entertain this matter flows from Article 165 (6) of the Constitution, which gives the High Court the supervisory jurisdiction over subordinate courts and any person, body or authority exercising a judicial or quasi-judicial function;b.The Jurisdiction conferred on the High Court by Article 165 (6) of the Constitution of Kenya is infinite and extensible, and cannot be limited even by the provision of an Act of Parliament;c.As a matter of public policy, the High Court should not be too eager to divest itself of the jurisdiction conferred on it by the Constitution simply because of an Act of Parliament;d.Article 165 (6) expressly bestows and does not in any way limit the High Court’s jurisdiction over any tribunal, including Business Premises Rent Tribunal; ande.Article 159 of the Constitution also mandates this Court to dispense justice expeditiously and without undue regard to procedural technicalities.

10. He deposed that he is advised by his Advocate on record that flowing from Article 165 (6) aforesaid, Business Premises Rent Tribunal is not conditionally debarred from the supervisory jurisdiction of the High Court.

11. Should this Honorable Court hold that Environment and Land Court best deal with the Appeal, it would be prudent and in the interest of justice that the same be transferred to that court for further hearing and determination of the issue on merit.

12. The matter was disposed by way of written submissions.

Submissions Respondent’s written submissions. 13. The Respondent in his submissions dated 3rd October,2023 and filed in court on 14th October,2023 wherein, counsel for the Respondent raised the following issues for determination:i.Does the Honorable Court have jurisdiction to entertain the Appeal and/or issue and/or extend the existing interim orders?ii.What is the fate of the interim orders for stay of execution upon a finding that the Honorable Court lacks jurisdiction in this Appeal?iii.What reliefs are available to the parties?

14. The essence of a preliminary objection was given by Law, JA and Sir Charles Newbold P. in Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors (1969) EA696. at page 700, Law, JA stated that:“….. a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

15. Credence was placed on the case of Owners of the Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd Mombasa Court of Appeal Civil Appeal No. 50 of 1989 [1989] eKLR, to cement the position that where the Court lacks jurisdiction it must down its tools and make no further step as proceedings would be ultra vires.

16. Counsel in his submission placed his reliance on the Landlord and Tenant (shops, Hotels and Catering Establishments) Act Cap 301 of the Laws of Kenya under Section 15 (1) which provides as follows:Appeal to court(1)Any party to a reference aggrieved by any determination or order of a Tribunal made therein may, within thirty days after the date of such determination or order, appeal to the Environment and Land Court:Provided that the Environment and Land Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit.

17. Further, Counsel relied on the case of Republic V Chairman Business Premises Rent Tribunal & Another Exparte; Carrington Complex Limited [2019] eklr, to buttress the point that the appeals of this nature have to be filed at the Environment and Land court.

18. It was submitted by the counsel for the Respondent that the supervisory jurisdiction power contemplated under Article 165 (6) of the Constitution exists for the Environment and Land Court in the same manner as it exists for the High Court hence the same cannot be entertained as an excuse by the Appellants for coming to the wrong forum to file an Appeal that ought to be filed at the Environment and Land Court.

19. Submitting that Appellant’s response to the application under consideration, they have admitted that the Court lacks Jurisdiction and they are only strategically seeking to have the matter transferred to the Environment and Land Court.

20. Counsel opined that in the event that the Honorable Court is Magnanimous and transfers the matter to the Environment and Land Court suo mottu, he urged the court to discharge the existing orders of stay proceedings and/or execution as the Honorable Court lacks jurisdiction to issue and/or extend such orders upon admission by both parties and as demonstrated by law that it is the Environment and Land Court that has Appellate Jurisdiction in a dispute of the nature before this Honorable Court.

Appellants’ Skeletal submissions 21. The Appellants in their Skeletal Submissions dated 18th October,2023 and filed in court on 19th October,2023 wherein Counsel for the Appellants submitted that by dint of Article 165 (6), the Business Premises Rent Tribunal is not Constitutionally debarred from the supervisory jurisdiction of the High Court.

22. It was submitted that a provision of an Act of parliament cannot be used as a basis to completely oust the jurisdiction conferred by the Constitution. Contending that the court can dictate which court should hear and determine a matter based on considerations of efficiency, expedition and convenience where there is concurrent jurisdiction. It doing so, such a dictate does not oust the jurisdiction of the High Court but rather offers a more convenient alternative.

23. Reliance was placed on the case of Republic Vs Retirement Benefits Appeal Tribunal & Another; Retirement Benefits Authority & 949 Others (interested Parties) Exparte Board of Trustees, Teleposta Pension Scheme [2018] eklr, where Lady Justice P. Nyamweya observed that:“This Court has found that the High Court does have Jurisdiction to hear and determine this suit, considerations of efficiency, expedition and convenience dictate that it be heard by the Employment and Labor Relations Court”

24. Further, reliance was made in the case of Republic Vs Chairman, Business Premises Rent Tribunal & Another EX-parte; Carrington Complex Limited [2019] eKLR to buttress his position that Article 165(6) expressly bestows and does not in any way limit the High Court’s jurisdiction over tribunal and subordinate courts.

25. Submitting that whether the High Court or the Environment and Land Court is the most convenient forum based on consideration of efficiency and expedition is an entirely different matter, which should not be conflated or confused with the question of jurisdiction, as the Respondent suggests.

26. It was contended by the counsel that a transfer would not be a matter of magnanimity as the Respondent argues, but rather a matter of constitutional duty drawn from Article 165 (6), which gives this Court jurisdiction and Article 159 of the Constitution, which mandates this court to dispense justice without undue regard to procedural technicalities.

Determination/Analysis 27. I have considered the Application, supporting affidavit, replying affidavit, submissions and authorities cited by both counsels on behalf of their clients.

Issues 28. The issues that commends themselves for determination are as hereunder:a.Whether this Court has Jurisdiction to entertain and/or adjudicate upon the subject Appeal.b.Whether the Appeal filed by the Appellants is Competent or otherwise.

Issue 1 Whether this Court has Jurisdiction to entertain and/or adjudicate upon the subject Appeal. 29. Jurisdiction of the court is always the focal point that every court has to determine before it can begin to wade itself into settling disputes that arise between parties. Jurisdiction is a connotation that has bedeviled the justice system for time immemorial which led to enactment of various statutes that will espouse which court has which jurisdiction to hear and determine which matter. It is indeed worth to say that jurisdiction is a creature of the statute and the Constitution.

30. The centrality and importance of Jurisdiction has been underscored in various Decisions of the Court of Appeal, as well as the Supreme Court of Kenya. In this regard, it is imperative to take note of the decision in the case of Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR, where the Court of Appeal held as hereunder;“In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae.” (emphasis added)

31. Notwithstanding the above court of appeal decision, the Supreme Court of Kenya also weighed itself on the issue jurisdiction in the case of Republic v Karisa Chengo & 2 others [2017] eKLR, where the Supreme Court observed thus:(35)35] In the above regard, we note that in almost all the legal systems of the world, the term “jurisdiction” has emerged as a critical concept in litigation. Halsbury’s Laws of England (4th Ed.) Vol. 9 at page 350 thus defines “jurisdiction” as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.” John Beecroft Saunders in his treatise Words and Phrases Legally Defined Vol. 3, at page 113 reiterates the latter definition of the term ‘jurisdiction’ as follows:“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision.The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by 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 cognisance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a 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”. (emphasis added)

32. Further, I am enjoined to look at the most celebrated and/or landmark case which was decided back in 1989 in Court of Appeal at Mombasa. The case I refer to is the Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1 where it was held thus:“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the 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 cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the 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 a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given”

33. Based on the foregoing, I will now turn my attention to journey on the authenticity and ascertain whether indeed the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act, Chapter 301 Laws of Kenya, has conferred this Court with Jurisdiction to entertain an Appeal arising from a decision of the Business Premises Rent Tribunal Complaint having brought to it under Section 12(4) thereof or otherwise.

34. It is also important to note that the only provision that creates and/or confers a Right of Appeal under the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act, Chapter 301 Laws of Kenya is Section 15 thereof.

35. In the premises, the provisions of Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act, Chapter 301 Laws of Kenya provides appeal to court and espouses that:“(1)Any party to a reference aggrieved by any determination or order of a Tribunal made therein may, within thirty days after the date of such determination or order, appeal to the Environment and Land Court:Provided that the Environment and Land Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit.

36. In the instant case, the Respondent submitted that the supervisory jurisdiction power contemplated under Article 165 (6) of the Constitution exists for the Environment and Land Court in the same manner as it exists for the High Court hence the same cannot be entertained as an excuse by the Appellants for coming to the wrong forum to file an appeal that ought to be filed at the Environment and Land Court.

37. It was the Respondent’s submission that from the Appellant’s response to the application under consideration, they have admitted that the court lacks jurisdiction and they are only strategically seeking to have the matter transferred to the Environment and Land Court.

38. On the other hand, the Appellants submitted that a provision of an Act of Parliament cannot be used as a basis to completely oust the jurisdiction conferred by the constitution. According to the counsel the court can dictate which court should hear and determine a matter based on considerations of efficiency, expedition and convenience where there is concurrent jurisdiction and in doing so such a dictate does not oust the jurisdiction of the High Court but rather offers a more convenient alternative.

39. Further, counsel opined that whether the High Court or the Environment and Land Court is the most convenient forum based on consideration of efficiency and expedition is an entirely different matter which should not be conflated or confused with the question of jurisdiction as Respondent suggest.

40. In the forgoing averments I chose to state here that jurisdiction is a creature of the statute and the constitution which in my view cannot be abrogated and/or divested by court which from the onset is not seized of the power to hear and determine a dispute before it.

41. I disagree with the position postulated by the Counsel for the Appellants that provision of an Act of Parliament cannot be used as a basis to completely oust the jurisdiction conferred by the constitution. In my view the Constitution under Article 162 (b) mandates the parliament to establish courts with the status of the High court to hear and determine disputes relating to the environment and use and occupation of, and title to, land.

42. Pursuant to provisions, the Environment and Land Court Act was enacted which elaborates on the jurisdiction of the Environment and Land Court in section 13 thereof as follows:(1)) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.(3)Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.(4)In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.

43. Consequently, the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act in addition provides under section 15 that appeals from decisions of the Business Premises Rent Tribunal shall lie to the Environment and Land Court Act. in my considered view where a statue expressly provides for a forum under a which a dispute is to be heard and determined, it goes without saying that that provision has to be adhered to and the matter at hand is not an exception.

44. In the upshot of the above, I find and hold that this court is not seized of Jurisdiction to entertain the subject Appeal.

45. I associate myself and adopt the position of the court of appeal in the case of Micro-House Technologies Limited V Co-operative College of Kenya [2017] eKLR, where the court pronounced itself as hereunder;“9. The question that we must answer is whether, in light of the above summarized position, this Court has jurisdiction to hear this appeal. Our simple answer is in the negative, that the Court lacks jurisdiction. The appellant had no right of appeal to this Court not having obtained leave under section 39(3) (b) of the Arbitration Act. This Court emphatically so held in Nyutu Agrovet Limited v Airtel Networks Ltd.(supra). Karanja, J.A. stated inter alia:

“I hold the view that no right of appeal is provided for in arbitral awards save for matters pegged on section 39 of the Act. I am convinced that a right of appeal is conferred by statute and cannot be inferred.” (emphasis added)

46. In the premises, I find and hold that the appeal herein is incompetent in so far as regards jurisdiction of the Court.

Disposition 47. ...a.The High Court lacks requisite jurisdiction to hear and determine the instant appeal the Appel and this file is transferred to the Environment and Land Court for hearing and determination through DR MHC.b.The existing orders of stay of proceedings and/or execution are hereby discharged.c.No order as to costs.

It is so ordered

DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 8TH DAY OF NOVEMBER, 2023(VIRTUAL/PHYSICAL CON-FERENCE).M. W. MUIGAIJUDGEIn The Presence Of:Mr. Abongo - For The AppellantsMr. Migele - For The RespondentGeoffrey/Patrick - Court Assistant(s)