Jane Mwihaki Hari v Highland Homes Investment Co. Ltd

3. The allegations that the Applicant has discovered new evidence is false. she is the one who sued the Respondent. The review part related to the registration of the Respondent cannot be done, given that there is no new evidence. further, there is no power to do a second review. indeed in the case of D. J. Lowe & Company Ltd v Bonquo Indosuez, Nairobi Civil Application No.217 of 1998, the Court of Appeal sounded a caution in such applications and stated that:“ Where such a review application is based on fact of the discovery of fresh evidence the court must exercise greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a different complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing.” 4. However, I note that the subject matter of the case is land parcel number Nyandarua/Miharati township/73. This means that the proceedings after 2013 related to this matter in this case are not for this court. The importance of Courts respecting the limits of their jurisdiction was emphasized by the Supreme Court in Petition No. 5 of 2015, Republic v Karisa Chengo & 2 others [2017] eKLR, as follows: “ (79) 5. It follows from the above analysis that, although the High Court and the specialized Courts are of the same status, as stated, they are different Courts. It also follows that the Judges appointed to those Courts exercise varying jurisdictions, depending upon the particular Courts to which they were appointed. From a reading of the statutes regulating the specialized Courts, it is a logical inference, in our view, that their jurisdictions are limited to the matters provided for in those statutes. Such an inference is reinforced by and fiows from Article 165(5) of the Constitution, which prohibits the High Court from exercising jurisdiction in respect of matters “reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or (b) falling within the jurisdiction of the Courts contemplated in Article 162(2).” The court notes that proceedings related to enforcing the decree, other than costs. The same is a creation of an application that resulted in the order of 25.9.2019. The question of whether to transfer to land or eviction is a remit of the environment and land court. For this court to proceed with an environmental and land matter would be anathema to the doctrine of stare decisis, which makes the Supreme Court the custodian of jurisprudential wisdom. Such proceedings in this court are a nullity. Nothing can be placed on a nullity, and it survives. In Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169, Lord Denning delivering the opinion of the Privy Council at page 1172 (1) said; “ If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” 6. Thus, it is for the court with jurisdiction to determine whether the eviction orders ought to be issued in a dismissed suit or whether the decisions made in 2009 and 1993 are time-barred. In Owners of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19347/eng@2025-05-20 2

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Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Justice Nyarangi JA, as he then was stated as doth; “ With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority: “By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. 7. I am called to down my tools, which I hereby do. Determination 8. In the circumstances, I make the following orders: a. All proceedings in the High Court from 15.1.2019 to a land matter. b. The current application shall be heard in the environment and land court, which is the court with jurisdiction to hear and determine the same c. The file is transferred to the Ol Kalou Environment and the Land Court d. Directions on before the court in Ol Kalou Environment and the Land Court e. No order as to costs. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 20TH DAY OF MAY, 2025. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of Mr Waichungo for the applicant Mr Githiga Mwangi for the Respondent Court Assistant – Michael M.D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19347/eng@2025-05-20 3

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