Wamere Helen Mwangi Dadet v David Njogu Gachanja [2015] KEHC 7699 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL CASE NO.  2182 OF 1995

WAMERE HELEN MWANGI DADET ……….……………………....PLAINTIFF

VERSUS

DAVID NJOGU GACHANJA……………………………………...DEFENDANT

RULING ON JURISDICTION OF THE HIGH COURT

This suit was instituted on 11th July 1995 vide a plaint dated 10th July 1995.  The plaintiff Wamere Hellen Mwangi Dadet sued the defendant David Njogu Gachanja claiming for judgment and orders:

a) Restraining  the defendant  either  himself, his servants and or agents  from transferring, disposing or interfering  with the plaintiffs  peaceful enjoyment  and or quiet  possession of the  plaintiffs  properties  title numbers;

1) Ruiru/Ruiru East Block 7/3

2) Ruiru/Ruiru East  Block 7/82

3) Ruiru/Ruiru East Block 7/81

4) Ruiru/Ruiru East  Block 7/154

b) A declaration that the court orders in RM CC 760 of 1994 was obtained irregularly, through fraud and without jurisdiction and that the same be declared null and void for all intents and purposes.

c) In the alternative and without prejudice an order that the Executive Officer, Sheria House be compelled to produce the court file in RM CC 760 of 1994 for further orders.

d) A declaration that  the transfer of the plaintiffs plot Nos

i. Ruiru/Ruiru East Block 7/3

ii. Ruiru/Ruiru East  Block 7/82

iii. Ruiru/Ruiru East Block 7/81

iv. Ruiru/Ruiru East  Block 7/154

by the defendant   to himself was done through fraud and an order directing the Land Registrar, Kiambu to cancel/annul the said transfers and reinstate the plaintiff’s name as the lawful proprietor of the said plots.

e) A declaration that no consent  of the Land Control Board having  been  obtained  by the defendant  the purported  transfer  to the defendant  is null and void.

f) General damages.

g) Any other/further relief that this Honourable court may deem appropriate.

h) Costs s and interest.

From the above pleadings, it is trite that the claim before this court and which has been pending for over 20 years undetermined, relates to title, use and occupation of land.

Albeit  the suit was instituted  in this court at a time when the court  had the jurisdiction  to hear and determine  the dispute as disclosed  in the prayers above, that position significantly changed with the promulgation  of the Constitution on 27th August 2010 vide Article  162(2) (b) of the Constitution which contemplates  the establishment  of a court, a superior  court with the same  status as the High Court, with jurisdiction  to hear and determine disputes relating  to...(b) the environment  and the use and  occupation of  and title to land.

That provision is followed by Sub Article (3) which commands Parliament to determine the jurisdiction and functions of the said court.

In 2011, Parliament implemented the above provisions of the Constitution by enacting the Environment and Land Court Act, 2011 and the court is anchored in Section 4 of the said Act.

Under Section 13(1) of the Act, the court  is conferred  with both original  and appellate jurisdiction to hear and determine disputes as contemplated  in Article  162(2) (b)  of the Constitution  and as  may be  conferred by any  other  written law.  Such law includes the Land Act, 2011 and Land Registration Act, 2011.

Under Section 13(7) of the Environment and Land Court Act the court is empowered to make orders including:

Declaratory orders.

Judicial Review.

Specific performance.

Injunctions

damages

In addition, Article  165(5) b  of the  Constitution  expressly  bars the High  Court from hearing  and determining  disputes that fall within the jurisdiction  of the Environment  and Land Court  as contemplated  in Article 162(2) (b)  of the Constitution.

The above being the position, this court must first therefore determine whether it has the jurisdiction to hear and determined this dispute.

It is worth noting that the  jurisdiction  of the High  Court is  conferred  by Article  165 (5) of the Constitution, which Article  also excludes  certain jurisdiction from  the court.  Further, jurisdiction  can only be  conferred  by the Constitution  or other written  law and not  parties  and neither can  the court  arrogate itself  jurisdiction  that it does not  possess as that would  in effect be acting  contrary  to the very Constitution and principles.

The locus classics on jurisdiction is the often quoted  case of  Owners  of the Motor Vessel “ Lilian S” V Caltex Oil (Kenya) Ltd (1989) KLR 1

Where Nyarangi JA held:-

“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it.  Jurisdiction is everything without it, a court 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”.

This court   holds the opinion that it is without jurisdiction to hear and determine this dispute   as the jurisdiction is ousted by the Constitution and expressly given/conferred onto another court of competent jurisdiction.

That being the case, albeit  the suit  herein was instituted before the effective date and therefore the transitional and consequential  provisions of the Constitution under part 5  Section 22 thereof on Administration of Justice  would be applicable, namely, that all proceedings pending before a court  or tribunal  shall be heard  and determined or as  may be  directed  by the Chief Justice  or Registrar  of the High Court pending  the establishment  of  a corresponding  court  or  tribunal, in the transition. I say so because the Environment and Land Court was established and competent judges duly appointed to the said  court thereby fully operationalising the court.  It therefore follows that  this matter has been hibernating  in a wrong  habitat.

I have stated  previously, while dealing with similar matters as this case not once, not twice that  there is  need for  proper organization and management of our court records  and registries, with the staff  being sensitized  and enabled to establish  a clearing  house for  cases  that are not supposed to  lie  in the High Court to be taken to the right  court.

Without that   action, we shall continue to archive old cases that ought to be disposed of expeditiously elsewhere thereby violating the very Constitutional principles espoused under Article 159 of the Constitution,  that justice shall be administered without undue delay. We will in addition forever have  in our records the so called backlogs that is not real.

From the foregoing  propositions, and as  I have found  that this court lacks  the requisite  jurisdiction to hear and determine  this dispute since  the  transitional provisions  of the Constitution  are now  spent and ousted by Article165(5)(b) of the Constitution by the full operationalization of the Environment and Land Court  which is  the corresponding  court, I  down  my tools  and direct  that this  whole suit  in its  many volumes  shall forthwith be transmitted to the Environment  and Land Court  for further  directions as to its  hearing and final disposal.

The matter shall therefore be mentioned on 16th October 2015 before  the Presiding Judge of Environment and Land Court for such directions as may be deemed fit.

Dated, signed and delivered suo motu in open court at Nairobi this 23rd day of September 2015.

R.E. ABURILI

JUDGE

23/9/2015