Isaac Julius Sang v Kipsaina Arap Mursoi

Article 165(5)(b) is couched in express mandatory exclusionary and prohibitory terms, removing from the High Court all matters falling within the jurisdiction of courts under Article 162(2), which includes disputes relating to the use and occupation of, and title to, land. The Environment and Land Court is established under its own statute. No transitional rationale, parliamentary conferral or pragmatism could restore to the High Court jurisdiction the Constitution had removed. The High Court proceedings post-promulgation were therefore a nullity.

Both the High Court judge and the Environment and Land Court judge had proceeded on the understanding that section 30 of the Environment and Land Court Act allowed part-heard land matters to continue in the High Court. The Court of Appeal held this understanding erroneous because a statutory provision cannot confer jurisdiction on the High Court over matters the Constitution expressly prohibits it from hearing. The apex court's pronouncement in Karisa Chengo that jurisdiction flows only from the Constitution or legislation reinforced this conclusion.

Because a decision rendered without jurisdiction is a nullity, the jurisdictional question must be resolved first on appeal. The Court noted that although Sang's counsel did not elaborate on ground 10 in submissions, the jurisdictional ground was live and, in any event, jurisdiction is so fundamental it cannot be ignored, invoking Nyarangi JA's dictum in the Lillian S case that without jurisdiction a court must down tools.