Silverpool Investments Limited & another v Ashiruma p/a Ashiruma & Co Advocates (Civil Appeal E725 of 2023) [2025] KEHC 11719 (KLR) (Civ) (31 July 2025) (Judgment) Neutral citation: [2025] KEHC 11719 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) CIVIL CIVIL APPEAL E725 OF 2023 WM MUSYOKA, J JULY 31, 2025 BETWEEN SILVERPOOL INVESTMENTS LIMITED ..................................... 1ST APPELLANT JOVAN H KARIUKI T/A MORAN AUCTIONEERS .................. 2ND APPELLANT AND HERBERT J ASHIRUMA P/A ASHIRUMA & CO ADVOCATES . RESPONDENT (Appeal against orders made in a ruling delivered by Hon. Cosmas Maundu, Chief Magistrate, CM, on 20th April 2023, in Milimani CMCComC No. E866 of 2022) JUDGMENT 1. The suit, at the trial court was by the respondent, and against the appellants. It was a tenancy dispute, between, a tenant and a landlord, over occupancy of premises on Block A2, Ground Floor, Silverpool Office Suites. A permanent injunction was sought to restrain eviction, distraint for rent, closure of the premises, etc, and interference with quiet possession of the suit premises. The appellants conceded the tenancy relationship, and the issues around rent. There is a counterclaim for outstanding rent, order for handover of possession, and eviction. 2. The appeal arises from some interlocutory orders made by the trial court, otherwise the matter is still pending hearing and final disposal. 3. The dispute is on use and occupation of premises. Under the Constitution, Articles 162(2) and 165(5), the High Court has no jurisdiction over such disputes. That jurisdiction is reserved for the court contemplated under Article 162(2), which Parliament set up through the Environment and Land Court Act, Cap 8D, Laws of Kenya. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11719/eng@2025-07-31 1
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4. The impugned order was made by the Magistrate’s Court. Under the Land Act, Cap 280, Laws of Kenya, and Land Registration Act, Cap 300, Laws of Kenya, the Magistrate’s Court has jurisdiction over those matters. 5. Section 150 of the Land Act states: “ 150. Jurisdiction of the Environment and Land Court The Environment and Land Court established in the Environment and Land Court Act (Cap. 8D) and the subordinate courts as empowered by any written law shall have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.” 6. Section 101 of the Land Registration Act states: “ 101. Jurisdiction of court The Environment and Land Court established by the Environment and Land Court Act (Cap. 8D) and subordinate courts has jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.” 7. The Magistrates Courts are subordinate courts, by dint of Article 169(1)(a) of the Constitution. Under section 26(3) of the Environment and Land Court Act, the Chief Justice may “appoint certain magistrates to preside over cases involving environment and land matters of any area of the country.” Under the Magistrates Courts Act, Cap 10, Laws of Kenya, the jurisdiction of a magistrate’s Court, with respect to the jurisdiction extended to that court by section 26 of the Environment and Land Court Act, is set out in section 9(a). Under section 13(4) of the Environment and Land Court Act, the Environment and Land Court has appellate jurisdiction over decisions of subordinate courts to whom jurisdiction has been extended under section 26 of the Environment and Land Court Act, and section 16A, thereof, gives guidelines on how matters relating to such appeals are to be handled. 8. Tenancies and leases are the subject of the Land Act and the Land Registration Act; hence they fall under the jurisdiction of both the Environment and Land Court and the Magistrate’s Court. 9. The mere fact that the impugned order was made by the Magistrate’s Court does not clothe the High Court with appellate jurisdiction. Article 165(5) of the Constitution has barred the High Court from exercising any jurisdiction over those matters, whether as a primary or appellate court. That being the case, I have no jurisdiction to determine the appeal before me for lack of jurisdiction. I have no option but to strike out the appeal herein with costs. Orders accordingly. DELIVERED, VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT BUSIA, ON THIS 31ST DAY OF JULY 2025. WM MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant, Busia. Carolyne Oyuse, Court Assistant, Milimani, Nairobi. Advocates Ms. Arasa, instructed by Omwenga-Arasa & Company, Advocates for the appellant. Mr. Sichangi, instructed by PC Onduso & Company, Advocates for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11719/eng@2025-07-31 2
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