Leonard Kamenchu Kairiama v Elijah Maitai Ichicha & 2 others [2021] KEELC 2356 (KLR)

The court relied on the Court of Appeal decision in John K. Malembi v Trufosa Cheredi Mutembei, holding that a court entitled to consider whether it has jurisdiction may do so either suo moto or on application by a party. The magistrate's directions of 04/12/2018 fell within the ambit of a preliminary objection on a point of law as defined in Mukisa Biscuit, and raised the jurisdictional issue at the earliest opportunity.

The appellant's own plaint acknowledged that his cause of action arose from Arbitration Board Case No. 2 of 1992. Section 26(3) of Cap 283 only allows a subordinate court held by a Resident Magistrate to revise decisions where a person dissatisfied with a compensatory monetary award applies. The prayers sought were declarations of ownership and cancellation of registration, not review of compensation, so the trial court properly held it had no jurisdiction.

Even assuming the Land Consolidation Act did not apply, the Land Adjudication Act is the alternative statute for adjudication areas. Section 29(1) provides that a person aggrieved by a determination of an objection must appeal to the Minister within sixty days. There was no proof that the appellant challenged the Arbitration Board decision to the Minister, so the trial court could not entertain a claim presented without exhausting that mechanism.

Responding to ground 5, the court held that it is trite law that jurisdiction flows only from the Constitution or statute or both. A consent by the DLASO cannot confer jurisdiction on a court, in the same manner that jurisdiction cannot be conferred by consent of the litigating parties, consistent with the Owners of Motor Vessel 'Lilian's' principle that a court without jurisdiction must down its tools.