Republic v Director of Survey, Kisumu County & another; Asara (Exparte Applicant); Agengo (Interested Party) [2023] KEHC 26556 (KLR)

Republic v Director of Survey, Kisumu County & another; Asara (Exparte Applicant); Agengo (Interested Party) (Judicial Review E001 of 2020) [2023] KEHC 26556 (KLR) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26556 (KLR)

Republic of Kenya

In the High Court at Kisumu

Judicial Review E001 of 2020

RE Aburili, J

December 1, 2023

In The Matter Of An Application By Francis Lugakia Asara And Others For Orders Of Certiorari And Prohibition And In The Matter Of And/or The Violation Of Article 27, 48, 47(1) And 50 Of The Constitution And Section 4(3) Of The Fair Administrative Act And In The Matter Of Section 87 Of The Land Registration Act And In The Matter Of The Right To Be Heard As A Fundamental Principle Of Justice And In The Matter Of Sections 8 And 9 Of The Law Reforms Act, Chapter 26, Law Of Kenya And In The Matter Of Order 53 Of The Civil Procedure Rules, 2010 And In The Matter Of Article 23 Of The Constitution Of Kenya, 2010 And The Enforcement Of Fundamental Rights And Freedoms

Between

Republic

Applicant

and

Director of Survey, Kisumu County

1st Respondent

Senior Principal Magistrate Maseno Magistrates Court

2nd Respondent

and

Francis Lugalia Asara

Exparte Applicant

and

Joshua Rachilo Agengo

Interested Party

Ruling

1. This Judicial Review matter was filed on 26th October 2020. From the pleadings which I have perused, no doubt, the impugned proceedings were before Maseno Senior Principal Magistrate ELC matter relating to a parcel of land vide Environment and Land Court Case No. 1 of 2020.

2. The land in issue and the dispute was over an alleged encroachment of the parcel of land. That type of dispute and appeal or Judicial Review proceedings arising from such dispute or decision of the ELC Magistrate’s Court or Land Registrar could only be lodged before the Environment and Land Court which is a Superior court with the same status as the High Court.

3. Articles 162 (2) (b) and 165 (5) (b) of the Constitution as read with Section 13 of the Environment and Land Court Act confer on the ELC jurisdiction to hear and determine all disputes relating to Environment and Land, to wit, ownership, occupation and title to land among others.

4. The jurisdiction of the High Court is explicitly removed from such disputes and therefore without jurisdiction, this court can do no more than down its tools and say no more.

5. Therefore, on this court’s own motion and for want of jurisdiction, these Judicial Review proceedings are hereby struck out with no orders as to costs as this court cannot arrogate itself jurisdiction that it is devoid of and or is deprived of by the Constitution and the Statutory enactments.

6. This file is closed.

7. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 1ST DAY OF DECEMBER, 2023R.E. ABURILIJUDGE