Mwakavi Makau Muindi & 1 other v Nio Adagi, J

The Notice of preliminary objection dated 13/3/2020 5. 6. The 1st Petitioner/Respondent filed the above stated preliminary objection to the protest herein above on two grounds that: a. The alleged sale and /or cause of actions are time barred. b. This court lacks jurisdiction to hear and determine the protest as it is based on sale and use of land which is the sole jurisdiction of the Environment and Land Court under the Constitution. Parties were directed to file submissions to canvass the protest. The protestors submissions are dated 17/01/2025 whereas the 1st Petitioner’s submissions are dated 04/12/2024. Analysis and Determination 7. I have carefully and cautiously considered the protest, the Notice of preliminary objection and the Parties’ counsel rival submissions on the matter. It is my considered view that I must first deal with the issue of jurisdiction as raised in the preliminary objection whose determination could effectively determine the protest. 8. On the issue of jurisdiction, the Supreme Court in The Matter of the Interim Independent Electoral Commission, S.C. Constitutional Application No. 2 of 2011; [2011] eKLR, and in Samuel Kamau Macharia and Another vs. Kenya Commercial Bank Limited and 2 Others [2012] eKLR, held that the assumption of jurisdiction by Courts in Kenya, is a subject regulated by the Constitution, Statute law, and judicial precedent. The Supreme Court stated: “ A Court’s jurisdiction fiows from either the Constitution or legislation or both. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity”. 9. In Motor Vessel “Lillian S” vs. Caltex Oil Kenya Limited (1989) KLR 1, this Court succinctly set out the principles and context for determination of jurisdiction. Nyarangi, JA stated, inter alia: “ Jurisdiction is everything. Without it, a court has no power to make one more step. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 10. It is trite law that where Constitution or Statute confers jurisdiction upon a court, tribunal, person, body or any authority, that jurisdiction must be exercised in accordance with the Constitution or the Statute conferring it. See Secretary, County Public Service Board & another vs. Hulbhai Gedi Abdille [2017] eKLR where this Court expressed itself as follows: “ Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum” 11. The issue as to this Court’s jurisdiction can therefore only be determined by first answering the question whether this Court can effectively determine the nature of the 1st Interested Party/Protestor’s claim over ownership and occupation of a portion of the deceased’s property within the framework provided by the Law of Succession Act. The question of the legal effect of the sale agreement entered https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14444/eng@2025-03-04 2

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into between the 1st Interested Party/Protestor and the deceased will need to be answered first, before this court as a probate Court can make a determination at the 1st Interested Party’s interest in the deceased’s property. 12. This resolution of that question will in addition involve application of the law on title to land, and the applicant’s protest therefore goes beyond being merely a claim of succession to the deceased property. It is notable in this regard that disputes primarily concerning ownership of land title to land fall within the jurisdiction of the Environment and Land Court as provided by Article 162 (2)(b) of the Constitution, and Section 13(1) and (2) of the Environmental and Land Court Act 13. The protestor claims to have bought the said portion from the deceased which is dispute by the 1st Petitioner/Administrator and the family of the deceased. It is in the interest of justice that these ownership disputes be resolved by a competent court as this court lacks the competent jurisdiction to determine matters touching on the ownership, use and occupation/possession of land. 14. Accordingly, I decline to give the orders sought in the protest for the foregoing reasons and direct that the 1st Interested Party/Protestor’s claim be litigated before a competent court which is the Environment and Land Court. 15. The protest by the 1st Interested Party/Protestor dated 06/06/2008 therefore lacks merit. 16. Each party to bear their own costs. 17. It is so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 4TH MARCH 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 4TH MARCH 2025 In the presence of: ..................................... for Protestor/Applicant .............................. for 1st Petitioners/ Respondents ........................................ Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14444/eng@2025-03-04 3

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