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ELCStruck OutMalindi HCCC (ELC) — Plaint filed 13th June 2011 (case number not stated in judgment)· [2019] KEELC 4957 (KLR)

English Voice Real Estate Limited v Richard Binns & another [2019] KEELC 4957 (KLR)

Environment and Land Court
24 January 2019
JOJ.O. OLOLA
1,490 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land lawsuit filed in the wrong court at the wrong time was struck out entirely, with the landowner who sued ordered to pay the other side's costs.

What this practically means

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Executive summary

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English Voice Real Estates Ltd, the registered proprietor of title Gede/Dabason/576 (0.2 Ha, Malindi) purchased in January 2010, sued Richard Binns and Fecilicy Binns for a permanent injunction restraining trespass, encroachment and dealing with the land, a mandatory injunction to remove a wall and borehole erected on the parcel, general damages and costs. The Defendants, registered proprietors of Gede/Dabaso/520 and 577, filed a defence and counterclaim asserting ownership of the fenced portion by adverse possession, and a preliminary objection dated 14th December 2017 contending that the suit was void ab initio for contravening Section 21(4) of the Registered Land Act, Cap 300, and that under Section 3 of the Land Disputes Act 1990 read with Section 11 of the Civil Procedure Act the trespass claim ought to have been filed in the Land Disputes Tribunal. The Plaintiff countered that its jurisdiction flowed from Article 162 of the Constitution and the Environment and Land Court Act, and that the Tribunal legislation had been repealed. The court, applying the Owners of Motor Vessel 'Lillian S' principle that jurisdiction is everything, held that the suit was filed on 13th June 2011, before the Environment and Land Court Act commenced on 30th August 2011, when the Land Disputes Tribunal Act was operative and the Tribunal was the proper forum; Article 165(5) had already removed the High Court's jurisdiction over land matters. Finding merit in the preliminary objection, the court struck out the suit with costs to the Defendants.

Key legal issues

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01

Whether the Environment and Land Court had jurisdiction over a land/boundary suit filed on 13th June 2011, before the ELC Act commenced

Holding

At the date of filing, the operative statute governing boundary and trespass disputes was the Land Disputes Tribunal Act, and the Tribunal was the proper forum; Article 165(5) had already excluded the High Court's jurisdiction over land matters

Reasoning

The suit was filed on 13th June 2011 while the Land Disputes Tribunal Act, No. 18 of 1990 was still in force; the Environment and Land Court Act commenced on 30th August 2011, after the suit was filed. The dispute concerns boundaries and trespass to land, which fell squarely within the Tribunal's jurisdiction under Section 3(1). Article 165(5) of the 2010 Constitution had already removed the High Court's jurisdiction over land matters, so the suit as filed was incompetent.

p. 2
02

Whether the Land Disputes Tribunals still existed at the relevant time

Holding

The Land Disputes Tribunal Act was repealed by Section 3(1) of the Environment and Land Court Act, which commenced after the suit was filed

Reasoning

The court traced the enactment and repeal: the tribunals were established under Section 4 of the Land Dispute Tribunals Act, No. 18 of 1990, with jurisdiction over boundary division, claims to occupy or work land, and trespass. The Act was repealed by Section 3(1) of the Environment and Land Court Act, No. 19 of 2011, which commenced on 30th August 2011 — after this suit had been filed — so the repeal could not cure the jurisdictional defect existing at filing.

p. 2

Legal principles established

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  • Jurisdiction is the authority of a court to decide matters before it, conferred and limited by the statute under which the court is constituted
  • A court without jurisdiction cannot take any further step in the proceedings

Court orders

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  1. 1.This suit is struck out with costs to the Defendants

Authorities

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Legislation

  • Registered Land Act, Cap 300Section 21(4)
  • Land Disputes Act, 1990 (Land Dispute Tribunals Act, No. 18 of 1990)Sections 3, 3(1), 4
  • Civil Procedure ActSection 11
  • Environment and Land Court Act, No. 19 of 2011Section 3(1)
  • Land Registration Act(referred to as repealing instrument in submissions)
  • Constitution of Kenya, 2010Articles 162, 162(2), 165(5)

Cases cited (1)

  • Owners of Motor Vessel "Lillian S" –vs– Caltex Oil (Kenya) Ltd
Jurisdiction invoked
Article 162(2) of the Constitution and the Environment and Land Court Act, No. 19 of 2011

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, "English Voice Real Estate Limited v Richard Binns & another [2019] KEELC 4957 (KLR)", Case Analysis (2019). Malindi HCCC (ELC) — Plaint filed 13th June 2011 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4957/eng@2019-01-24

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