Gachanja v Kariuki

4. b. Rent paid by the plainti for the entire period since the unlawful eviction by the defendant from Redhill Estate Villa Number 34, Nandi type on Land Reference Number 29084; c. Costs of this suit; and d. Any other order that this honourable court may deem t to grant in the interest of justice. Upon being served with papers relating to the suit, the defendant entered appearance and simultaneously led a notice of preliminary objection inviting the court to strike out the suit in limine on the following verbatim grounds; a. This honourable court lacks jurisdiction to hear this suit because the subject matter of the suit is a debt/money owed. b. The dispute between the parties herein is not about land or land related. c. The suit herein is bad in law, an abuse of court process and should be dismissed with costs. 5. The preliminary objection was canvassed through written submissions dated 31/5/2023, led by M/ s Ruiru Njoroge & Associates. The plainti contested the preliminary objection through written submissions dated 8/6/2023, led by M/s Mukele & Kakai LLP. 6. The gist of the defendant’s objection is that the subject matter of the suit is a debt/money owed and the same should not be before this court. Citing paragraphs 3, 4 and 7 of the plaint, the defendant contends that the cause of action in this suit is “purely contractual in nature based on alleged breach of contract involving exchange of money hence the same falls outside the scope of matters that can be entertained by this”. 7. Counsel for the defendant contended thus: “ We further submit that the dispute between the parties is not about land or land related but rather it is about money matter and should be dismissed for want of jurisdiction and/or at best transferred to the magistrate court which has jurisdiction to entertain the same.” 8. The position of the plainti on the question of jurisdiction is that the dispute in this suit involves the determination of the property rights of the plainti as a co-owner of the Villa and a determination of the question as to whether the defendant violated the property rights of the plainti by evicting her. The plainti adds that it is not in dispute that the dispute is about ownership, title, occupation and use of the Villa. It is the case of the plainti that this court is the proper court to adjudicate the dispute. 9. I have considered the preliminary objection together with the rival submissions. Two key issues fall for determination in the preliminary objection. The rst issue relates to the question as to what is the dominant issues in the dispute in this suit. The second issue is the question as to whether this court is the proper court to adjudicate the dominant issues in the dispute. I will make brief sequential analysis of the two issues in the above order. 10. I have read the pleadings that are before court. The substantive case of the plainti is that she is a coowner of Villa Number 34. To support that contention, she has placed before the court a co-ownership agreement dated 25/6/2019. The agreement is expressed as arming the co-ownership. Further, the agreement contains a framework on utilization and occupation of the Villa. The plainti contends that she was in occupation of the Villa as a co-owner and in tandem with the parties’ mutual agreement. It is her case that the defendant illegally evicted her. She wants the co-ownership arrangement terminated through sale of the Villa and division of the sale proceeds. In the alternative, she wants the defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22134/eng@2023-11-29 2

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to buy her share based on the current market value of the Villa. Further, she wants damages equivalent to rent she has been paying after what she terms as illegal eviction. 11. 12. From the above analysis, it is clear that the following are the dominant issues that fall for determination in the main suit. a. The question as to whether the plainti is a co-owner of the Villa; b. Whether the defendant holds the Villa in trust for the two of them; c. Whether the plainti was entitled to occupy the Villa; d. Whether the plainti was illegally evicted from the Villa; and e. Whether the alleged co-ownership and trust should be terminated. Is this court the proper court to determine the above dominant issues? The answer to the above question is found in Article 162(2) (b) of the Constitution which provides as hereunder: “ (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (a) ………… (b) the environment and the use and occupation of, and title to, land.” 13. Disputes about ownership/title to land; occupation of land; use of land and all ancillary questions relating to use, occupation and title to land are for the Environment and Land Court. The issues identied in the preceding paragraph fall within the broad jurisdiction that is set out in Article 162 (2) (b) of the Constitution. 14. For the above reasons, it is my nding that the dominant issues in this suit fall within the jurisdiction of the Environment and Land Court. The result is that the preliminary objection dated 13/12/2022 is devoid of merit. The same is rejected for lack of merit. The defendant shall bear costs of the preliminary objection. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 29TH NOVEMBER 2023 B M EBOSO JUDGE In the presence of: Mr Ruiru for the defendant Court Assistant - Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22134/eng@2023-11-29 3

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