Blue Sands Hotel Limited v Kassim Were Abdallah

Blue Sands Hotel Limited v Abdallah (Civil Case 68 of 2003) [2023] KEHC 42 (KLR) (17 January 2023) (Ruling) Neutral citation: [2023] KEHC 42 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU CIVIL CASE 68 OF 2003 RE ABURILI, J JANUARY 17, 2023 BETWEEN BLUE SANDS HOTEL LIMITED ............................................................. PLAINTIFF AND KASSIM WERE ABDALLAH ................................................................ DEFENDANT RULING 1. There is no evidence that parties counsel were served for today as directed on November 17, 2022. However, I have perused the pleadings and especially the proposed amended Plaint and what I find is the Plaintifi’s claim against the Defendant is for transfer and title of land and in the alternative, eviction of the Defendant from land parcel measuring 0.6 ha of Kisumu/Kogony/4076, 7441 and 7442. 2. That claim in itself is not within the jurisdiction of this court as the jurisdiction is ousted by Articlse 162(2) (b) and 165(5)(b) of the Constitution as read with Section 13(1) and (7) of the Environment and Land Court Act which provisions are clear, that all disputes relating to the environment and the use of and occupation of land and title to land shall be heard and determined before the Environment and Land Court. 3. Albeit this suit and the prayers sought were filed in 2003 before the promulgation of the 2010 Constitution and the enactment of enabling legislation to implement Article 162(2)(b) of the Constitution, the transitional and consequential provisions of the Constitution are clear on how existing laws should be construed. 4. Further, as we are no longer in transition, I find this suit not to be properly before this court. It should have, during the transition period, been placed before the Environment and Land Court for hearing and final determination. https://new.kenyalaw.org/akn/ke/judgment/kehc/2023/42/eng@2023-01-17 1

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