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Court of AppealPartially AllowedCivil Appeal No. 231 of 2015· [2020] KECA 661 (KLR)

Lucy Wanjiru Kiruhi & 5 others v Lilian Wairimu Ngatho [2020] KECA 661 (KLR)

Court of Appeal of Kenya
22 May 2020
Martha Karambu KoomeM.K. KoomeDMD.K. MusingaSKS. Gatembu Kairu
1,899 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a High Court ruling over a land dispute was void because only the Environment and Land Court could decide it.

What this practically means

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Executive summary

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The appeal arose from a ruling of Nyamweya, J. dated 31st January 2014 in HCCC No. 745 of 2001 (O.S.), refusing the appellants' applications to be joined as defendants and for review and setting aside of a judgment delivered by Ojwang, J. on 30th July 2010. The appellants were purchasers of subdivisions of LR No. 5964/1 whose titles had been nullified in the suit. They argued they had been condemned unheard contrary to audi alteram partem, and on appeal further argued that Nyamweya, J., a High Court judge, lacked jurisdiction after the Environment and Land Court came into operation, relying on Republic v Karisa Chengo. The respondents countered that caveat emptor advertisements constituted notice and that the transfers offended lis pendens. The Court of Appeal held that jurisdiction may be raised at any stage and must be determined first; that since the underlying judgment had been delivered in 2010, before the ELC was operational, the 2012 review applications were new matters for the ELC under the transitional provisions and the Chief Justice's Gazette Notice of 9th November 2012; and that, per Karisa Chengo, the ELC and High Court are distinct, autonomous courts. The High Court ruling was therefore a nullity. The appeal was allowed, the impugned ruling set aside, and the review applications remitted for hearing afresh before the ELC at Nairobi, with each party bearing its own costs of the appeal. The remaining grounds of appeal were not considered as it would have been superfluous to do so.

Key legal issues

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01

Jurisdiction of the High Court to determine review applications in a land matter after establishment of the Environment and Land Court

Holding

The High Court judge lacked jurisdiction; the ruling was a nullity because the review applications, filed in 2012 after the ELC was operational, were new matters for the ELC.

Reasoning

The judgment under review was delivered on 30th July 2010, before the ELC came into operation, so there was no pending proceeding at the transition date. The review applications were filed in 2012, after ELC judges were appointed in October 2012. Under Section 30 of the Environment and Land Court Act and the Chief Justice's Gazette Notice of 9th November 2012, only part-heard cases remained with the High Court. The applications, being new matters which if successful would have led to a fresh hearing, fell within the ELC's exclusive jurisdiction.

p. 3
02

When a jurisdictional objection may be raised and its precedence

Holding

A jurisdictional challenge may be raised at any stage, even on appeal, and must be resolved before other grounds of appeal are considered.

Reasoning

The Court invoked its own decision in Kenya Ports Authority v Modern Holdings and Owners of The Motor Vessel 'Lillian S' Caltex Oil (Kenya) Ltd, restating that jurisdiction is everything and that without it a court has no power to make one more step. The respondents' counsel conceded that ELC judges had been appointed before the application was heard in September 2013, which undermined any claim of continuing High Court jurisdiction.

p. 2
03

The autonomous jurisdiction of the Environment and Land Court vis-à-vis the High Court

Holding

Adopting the Supreme Court's holding in Republic v Karisa Chengo, the ELC and High Court are distinct and autonomous courts exercising different jurisdictions, and neither may entertain matters reserved to the other.

Reasoning

The Court relied on the Supreme Court's authoritative exposition in Republic v Karisa Chengo, which held that the special cadre of courts with suis generis jurisdiction under Article 162(2) are not the High Court, and that Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, and vice versa. This supported the conclusion that a High Court judge could not lawfully determine the review applications.

p. 3

Legal principles established

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  • A judge of the High Court lacked jurisdiction to hear review applications in a land matter filed in 2012 after the Environment and Land Court came into operation; such new applications must be handled by the ELC, and a decision made without jurisdiction is a nullity.
  • Jurisdiction may be raised at any stage of proceedings, even on appeal, and must be determined first before other grounds are considered.
  • Where there is no pending proceeding relating to land at the time the ELC comes into operation, later-filed applications fall to the ELC rather than being retained by the High Court under the transitional provisions.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling of Nyamweya, J. dated 31st January 2014 is set aside
  3. 3.Substituted therefor, an order that the applications for review be heard afresh before the Environment and Land Court at Nairobi
  4. 4.Each party shall bear its own costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Section 22 of the Sixth Schedule
  • Environment and Land Court ActSection 30 (Transitional Provisions)

Cases cited (5)

  • Republic v Karisa Chengo & 2 Others
    [2017] eKLR
  • Kenya Ports Authority v Modern Holdings [E.A.] Limited
    [2017] eKLR
  • Owners of The Motor Vessel "Lillian S" Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • In the Matter of the Interim Independent Electoral Commission
    Constitutional Application Number 2 of 2011
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 745 of 2001 (O.S.)
Jurisdiction invoked
First appeal to the Court of Appeal under Article 164 of the Constitution (not expressly stated); the impugned ruling was a High Court ruling in HCCC No. 745 of 2001 (O.S.)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lucy Wanjiru Kiruhi & 5 others v Lilian Wairimu Ngatho [2020] KECA 661 (KLR)", Case Analysis (2020). Civil Appeal No. 231 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/661/eng@2020-05-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.