Mburu Mucheru v Chege Muchunu [2015] KEHC 1322 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  2666 OF 1976

MBURU MUCHERU ………………………………………….PLAINTIFF

VERSUS

CHEGE MUCHUNU…………………………......……..........DEFENDANT

RULING

By a plaint filed in court on 25th November 1976  which is about 40 years  ago, short of 2  months  away from  today, the plaintiff Mburu Mucheru  filed suit against  the defendant  Chege  Muchunu.

The claim by the plaintiff against the  defendant is that “ the defendant entered on the plaintiff’s land known  as LOC.4/Ngararia/855 without  his consent  and excavated  stone worth kshs 30,000 since the  year 1973  until the date  of filing  the suit” and that by the aforesaid  reasons  the plaintiff had suffered  loss and damage  which  he claimed from the defendant.  He therefore prayed for:

Special damages  shs 30,000/-.

Mesne profits appendre at shs 400 per month.

General damages.

Interest at 8% since 1973 till date of judgment and thereafter at court rates.

Removal of the caution.

Costs and interest thereon.

Several interlocutory applications were determined culminating in a ruling of 30th July 1982 by Honourable Justice Todd (as he then was, which the plaintiff challenged by filing notice of Appeal dated 22nd September 1982 to the Court of Appeal.

The matter was then referred to arbitration and judgment was entered following arbitration proceedings.  On 7th May 2001 the plaintiff by Notice of Motion dated 3rd May 2000 filed an application seeking to set aside that judgment.  The said application was dismissed on17th October 2001.

On 16th January 2002 the plaintiff filed Notice to act in person and ever since, until 20th March 2015, when the plaintiff fixed a date for pre-trials, nothing had taken place.

The matter also  appears to have  been consolidated  with HCC 1976/1976. on 6th May 2015 Honourable  Mbogholi Msagha J noted the case to be  one of the oldest on record  and directed  the Deputy Registrar to issue  notice to the parties why  the suit should not be dismissed  for want of prosecution.

The  firm of Ishmail & Company Advocates have filed an application dated  16th June  2015  to come on record for  the plaintiff and for an order for  the file to be taken to the Environment and  Land Court  for directions as to how to proceed with the matter.

I have given the background  of this matter to establish  the  length  of time it has  taken in  the court corridors and records  and whether  this court has jurisdiction  to hear and determine any remaining term and  issues  on record, notwithstanding  the judgment  that was entered  vide arbitration proceedings.

In view of  the fact that  the claim concerns  trespass  to land and ownership  thereof,  albeit this suit was instituted  39 years and 10 months ago, and since  the plaintiff  is seeking  orders  of this court to  set aside  that judgment, the  jurisdiction  of this court  has been caught up in the ouster  provisions  of Article 165(5)(b) of the Constitution.  That provision expressly bars the High Court from hearing and determining disputes that fall within the courts contemplated in Article 162(2) of the Constitution, and the Supreme Court.

Under  Article  16(2)(b), it is contemplated  that all disputes relating to environment, occupation, title  to land and ownership of land shall be  heard and  determined  by a Superior Court  with the  same status  as the High Court.  Then Parliament is mandated to make legislation under Article 162(3) to provide for the jurisdiction and functions of the said court.  In 2011, Parliament implemented the above provisions by enacting the Environment and Land Court Act,2011.

The court is anchored in Section 4 of the Act whereas the jurisdiction of the court, both original and appellate is provided for in Section 13(1).  The orders that the court can make are set out in Section 13(7) and they include:

Declaratory

Specific performance

Damages

Injunctions

Judicial Review among others

Albeit this dispute was instituted before this court long before the promulgation of the new Constitution on 27th August 2010 and therefore the court had unlimited jurisdiction in the matter, that jurisdiction is ousted by Article 165(5) (b) of the Constitution.

Furthermore, the remainder  of the dispute could only be entertained  by this court  in the transitional  period  as contemplated  in part 5, Section 22 of the Transitional  and consequential provisions  of the Constitution  on administration of justice which provide that  any proceedings  pending  before  the court or tribunal  on the  effective  date shall continue  to be heard and determined by that court or tribunal pending the establishment of a corresponding court or tribunal or as may be directed by the Chief Justice or Registrar of the High Court.

In this case, the  transitional period lapsed  with the  establishment  and subsequent  full operationalization  of the Environment and Land Court  and the appointment  of competent judges  to preside  over the court.

That being the case, those transitional provisions are spent and the ouster provisions of Article 165(5)(b) of the Constitution are fully operational.

“Jurisdiction is everything without it, a court of law 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   tools in respect of  the  matter before it  the moment  it holds the opinion that it is  without jurisdiction” (see  Owners of Motor Vessel “ Lilian S” V Caltex (K) Ltd.)

It is  for those reasons above that  I have taken  this earliest  opportunity to render this decision/ruling suo moto knowing that it will not prejudice  any parties to this suit  and direct that  the file herein in its entirety and all pending  applications be  and are hereby transmitted to and placed before  the Presiding Judge  of the Environment  and Land Court Nairobi for  further directions  as to the disposal of the dispute.

Dated, signed and delivered in open court at Nairobi this 29th day of September, 2015.

R.E. ABURILI

JUDGE

29/9/2015

Coram R.E. Aburili J

C.A. Adline

Mr Tumu for respondent

No appearance  for respondent (served)

Mr  Tumu-  It is  our application  dated  16th June  2015.

R.E. ABURILI

JUDGE

COURT-  I have  in a separate  cover written a ruling  on this  matter  regarding  jurisdiction  of the court which  is hereby read and  delivered.  The matter is directed to be placed before  Environment and Land Court.  Mention on 27th October  2015  before Environment  and Land Court.

R.E. ABURILI

JUDGE

29. 9.2015