Odede & 2 others v Arunga & 3 others [2023] KEELC 22129 (KLR)

Odede & 2 others v Arunga & 3 others (Constitutional Petition 12 of 2021) [2023] KEELC 22129 (KLR) (6 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22129 (KLR)

Republic of Kenya

In the Environment and Land Court at Homa Bay

Constitutional Petition 12 of 2021

GMA Ongondo, J

December 6, 2023

(FORMERLY HOMA BAY HIGH COURT CONSTITUTION PETITION NO. 13 OF 2017)

Between

Isaac Maurice Kibuye Musa Odede

1st Petitioner

Beatrice Atieno Ochieng

2nd Petitioner

Isaiah Agwenge Odera

3rd Petitioner

and

Robert Arunga

1st Respondent

George Kidenda

2nd Respondent

The Land Registrar, Rachuonyo

3rd Respondent

The Honourable Attorney General

4th Respondent

Ruling

1. The instant ruling is in respect of a preliminary objection dated 26th April 2018 and lodged in court on even date by the 4th respondent on the ground that this Honourable court lacks jurisdiction to hear and determine this dispute.

2. The preliminary objection was drawn to the attention of the court after the filing of the petitioner’s submissions and thorough rearrangement of the apparent mix up of voluminous record herein due to transfer of this matter from one court to another.

3. Initially, this petition was lodged in Homa Bay High Court then on 19th December 2018, the same was transferred to Environment and Land Court at Kisii. On 12th June 2019, the petition was transferred to Migori Environment and Land Court. On 20th September 2021, it was further transferred to this court for hearing and determination.

4. Furthermore, the original 1st petitioner passed and it took a while to substitute him. Therefore, the same was effected pursuant to a Notice of Motion dated 13th April 2023. The same was allowed on 18th October 2023.

5. By a petition dated 18th September 2017 and filed herein on 19th September 2017, the petitioners through O.P Ngoge and Associates Advocates are seeking the orders infra;a.A declaration that the Registrar of Lands and the then local chief subverted the alleged fundamental Human Rights of the Petitioners and the fundamental Human Rights of other local residents of Kodera Karabach who were (and still are) in active occupation of the parcels of land above-mentioned, during the period of land adjudication, by arbitrarily by-passing them and registering Derrick Nyaoro Choto (an outsider) as the first registered proprietor of the parcels of land known as (i) West Kasipul/Kodera Karabach/679 (ii) west Kasipul/Kodera Karabach/715 (iii) West Kasipul/Kodera karabach/774 (iv) West Kasipul/Kodera Karabach/917 and (v) west Kasipul/Kodera-Karabach/765. b.An order of certiorari to issue to bring to this Honourable court for the purposes of quashing the decision of the Registrar of Lands dated 10th may 1979 registering Mr. Derrick Nyaoro Choto as the first registered proprietor of the parcels of land known as (i) west Kasipul/Kodera/Karabach/675 (ii) West Kasipul/Kodera Karabach/715 (iii) West Kasipul/Kodera Karabach/765 (iv) west Kasipul/Kodera Karabach/774 (v) West Kasipul/Kodera Karabach/917. c.An order of certiorari to issue to bring to this Honourable court for the purposes of quashing the subsequent decisions of the Registrar of lands made pursuant to the grant of letters of Administration intestate issued by the High Court in Nairobi succession cause No HC 1096 of 1992 registering Beldina Were Nyaoro as the second registered proprietor of the parcels of land known as (i) west Kasipul/Kodera Karabach/679 (ii) West Kasipul/Kodera Karabach /715 (iii) West Kasipul/Kodera/Karabach/765 (iv) West Kasipul /Kodera Karabach/774 (v) West Kasipul/Kodera Karabach 917. d.An order of prohibition to issue to block and completely restrain the Registrar of lands from registering any of the beneficiaries of the estate of the late Derrick Nyaoro Choto and/or any of the beneficiaries of the estate of the late Beldina Were Nyaoro as the registered proprietor(s) of the parcels of land known as (i) West Kasipul /Kodera Karabach/679 (ii) West Kasipul/Kodera Karabach/715 (iii) West Kasipul/Kodera Karabach /765 (iv) West Kasipul/Kodera Karabach /774 (v) West Kasipul Kodera Karabach /917. e.Orders of mandamus be issued to compel the Registrar of lands to Register Mr. Isaac Maurice Kibuye Odede as the valid and bona-fide registered proprietor of the parcel of land known as (i) west Kasipul/Kodera Karabach 765. f.Orders of mandamus be issued to compel the Registrar of Lands to Register Beatrice Atieno Ochieng as the valid and bona-fide Registered proprietor of the parcels of land known as west Kasipul/Kodera Karabach/774 and(ii) West Kasipul/Kodera Karabach/715. g.Orders of mandamus be issued to compel the Registrar of Lands to register Isaiah Agwenge Odera as the valid and bona-fide Registered proprietor of the parcel of land known as (i) West Kasipul/Kodera Karabach/917. h.General and exemplary damages.i.Costs of the suit and interest thereon.j.Any other or further orders which the Honourable court deems fit and just to grant in the circumstances of this petition.

6. The 1st and 2nd respondents are represented by the firm of Odondi Awino & Company Advocates pursuant to a memorandum of appearance dated 22nd August 2019.

7. By the court’s ruling rendered on 22nd June 2022, the court ordered and directed that the preliminary objection;“.......to take precedence and be heard on priority over all other issues in this petition.”

8. In the submissions dated 8th July 2023, learned counsel for the petitioners stated that the petition pertains to ownership, possession, occupation, use and titles of the suit parcels of land. That in view of filing and transfer of suit, the preliminary objection is no longer alive following consent and transfer of it to Environment and Land Court. That the 1st and 2nd respondents were granted letters of administration in NBI HC Succession Cause No. 1369 of 2009 and that the suit parcels of land are listed in the said cause. That both the High Court and Environment and Land Court have concurrent jurisdiction to determine the issues in the petition. Reliance was made on Tasmac Ltd v Roberto Marci & 2 others (2013) eKLR. Dina Management Ltd v The County Government of Mombasa & 5 others (2021) eKLR and Katende v Haridar & Company Ltd 2008) 2 EA 173. Counsel urged the court to dismiss the preliminary objection with costs to the petitioners.

9. On 18th October 2023 and 6th November 2023, the respondents informed the court that they did not intend to file submissions on the preliminary objection.

10. In the foregone, is this court seized of jurisdiction over the present petition?

11. Notably, the preliminary objection is on a point of law namely jurisdiction of this court in respect of the instant petition and may dispose of the same; see Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 at 700.

12. In Halsbury’s Laws of England 4thEdition Volume 9 at page 350, the term “Jurisdiction” is defined as follows;“The authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for decision.”

13. In Samuel Kamau Macharia and another v Kenya Commercial Bank Ltd and 2 others (2012) eKLR, the Supreme Court of the Republic of Kenya held-“....a court’s jurisdiction flows from either the Constitution or legislation or both...”

14. Article 162 (2) (b) of the Constitution of Kenya, 2010 anchors the jurisdiction of this court. The same is operationalized by Section 13 (1) of the Environment and Land Court Act, 2015 (2012) and other relevant statutes.

15. In the case of Owners of Motor Vessel “Lillian S” v Caltex Oil (K) Ltd (1989) KLR 1, the Court of Appeal held-“......Jurisdiction is everything. Without it a court has no power to take one more step.......”

16. Similarly, in Republic v Karisa Chengo & 2 others (2017) eKLR, the Supreme Court of the Republic of Kenya remarked;“...lack of jurisdiction renders a court’s decision void as opposed to it being merely voidable...”

17. I take into account the existence or non-existence of concurrent jurisdiction of courts over a matter; see Equity Bank Ltd v Bruce Mutie and Diani Tour Travel (2016) eKLR.

18. In light of the character of the issues raised in the petition, this court is seized of jurisdiction over the instant dispute.

19. Thus, the preliminary objection fails. The same is hereby dismissed with no orders as to costs.

DATED AND DELIVERED AT HOMA BAY THIS 6TH DAY OF DECEMBER 2023G. M. A ONGONDOJUDGEPresent;1. Ngoge learned counsel for the petitioners2. Ms Agade instructed by Odondi Awino learned counsel for the 1st and 2nd respondents3. Luanga, court assistant