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ELCOtherCivil Appeal No. 62 of 2014· [2018] KEELC 4797 (KLR)

Lucas Kivunaga & 3 others v Lucas Odhiambo Omollo [2018] KEELC 4797 (KLR)

High Court of Kenya at Kakamega
25 January 2018
NMN.A. Matheka
2,122 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed it cannot decide land disputes—those belong exclusively to the Environment and Land Court, and orders made without jurisdiction are nullities.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 12th July 2017 by the applicants/appellants seeking stay of execution, and review, vacation or setting aside of orders made by the High Court on 16th March 2017 dismissing their appeal for non-attendance, plus referral of the matter to the Environment and Land Court. The applicants argued the dispute concerns land parcel Tiriki/Hamisi/A 199, a matter within the exclusive jurisdiction of the Environment and Land Court, that the application was misallocated to the High Court Division causing their non-attendance, and that the orders were a nullity for want of jurisdiction. The respondent opposed, noting the applicants misjoined him under a wrong name (OmolO instead of Okello), had knowingly filed the appeal in the wrong court, were duly served with the dismissal application, and were using the court process to frustrate his possession and execution of eviction orders in Civil Suit No. 57 of 2011. The court concurred with the applicants that land matters fall within the exclusive jurisdiction of the Environment and Land Court and that the orders of 16th March 2017 were made by a court bereft of jurisdiction and were therefore a nullity. However, upon perusing the court file, the court found the identical orders had already been made by Justice Njagi on 18th July 2017 setting aside the dismissal and referring the matter to the Environment and Land Court. The court therefore declined to grant the orders afresh, advised the parties to take a hearing date, and ordered costs to be in the cause.

Key legal issues

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01

Jurisdiction of the High Court over land disputes

Holding

The High Court had no jurisdiction to grant the orders of 16th March 2017 as the dispute relates to land, a matter reserved for the Environment and Land Court

Reasoning

The court concurred with the applicants that land matters are a preserve of the Environment and Land Court under Articles 162(2)(b) and 165(5)(b) of the Constitution. The orders of 16th March 2017 were therefore made in error by a court bereft of jurisdiction, and setting them aside allows all parties to advance their claim in the correct forum. The court noted Justice Njagi had already made the identical orders on 18th July 2017.

p. 3
02

Review for error on the face of the record

Holding

The application was merited as the subject application was wrongly placed before the High Court Division, but the orders sought had already been made by Justice Njagi

Reasoning

The court found an error on the face of the record: a land dispute application was heard by the High Court Division instead of the Environment and Land Court. It further found the applicants' non-attendance was occasioned by misallocation and that setting aside the orders serves the interest of justice by guaranteeing all parties a hearing in a competent forum. However, the relief was already granted by Justice Njagi on 18th July 2017.

p. 3

Legal principles established

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  • Land matters fall within the exclusive jurisdiction of the Environment and Land Court, not the High Court

Court orders

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  1. 1.Parties advised to take a hearing date on the matter before the Environment and Land Court
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 1A & B, 3A and 80
  • Civil Procedure Rules 2010Order 45 rule (2)
  • Civil Procedure Rules 2010Order 1 rule 3
  • Civil Procedure Rules 2010Order 12 Rule 3
  • Constitution of KenyaArticle 162(2)(b) and 165(5)(b)

Cases cited (1)

  • Nellie Wanjala Opembe v Fibi Wanjala Opembe
    Civil Appeal No. 83 of 2015
Jurisdiction invoked
Article 165(5)(b) and 162(2) of the Constitution; sections 1A & B, 3A and 80 of the Civil Procedure Act and Order 45 rule (2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lucas Kivunaga & 3 others v Lucas Odhiambo Omollo [2018] KEELC 4797 (KLR)", Case Analysis (2018). Civil Appeal No. 62 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4797/eng@2018-01-25

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