Kenya Ports Authority v Supernova Properties & 2 others

costs to the 1st Respondent. Party and Party Bill of Costs of Costs was filed and taxed, and which ruling is subject to these proceedings. 5. The reference before this court was filed after the Taxing Master failed to give the reasons of the ruling despite the Applicant making a notice of objection of the taxation dated 22/05/2024. The Applicant stated that the reference was properly before this court as section 12 of the Environment and Land Court does not apply at this instance as the judicial officer exercised his function as a Taxing Officer and not as a Deputy Registrar, and in the Advocates Remuneration Order, the ‘court’ is defined as a ‘High Court or any judge thereof or a Resident Magistrate Court or any magistrate sitting as a member of the Resident Magistrates Court. 6. It was directed that both the Preliminary Objection and the Notice of Motion application both dated 12/03/2025 be canvassed by way of written submissions. As at the time of writing this ruling, only the 1st Respondent had complied by filing its written submissions dated. DIVISION - Analysis and Determination 7. 8. I have perused through the Applicant’s Chamber Summons, the 1st Respondent’s Notice of Motion and Preliminary Objection, and the submissions filed, the authorities cited as well as the law and I discern the following issues for determination: a. Whether the Preliminary Objection has merits. b. What is the order as to costs? On the first issue, the parameters of consideration of a Preliminary Objection are now well settled. A Preliminary Objection must only raise issues of law. The principles that the Court is enjoined to apply in determining the merits or otherwise of the Preliminary Objection were set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696. At page 700, Law, JA stated: “ A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the Court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 9. 10. For a Preliminary Objection to succeed the following tests ought to be satisfied; a. it should raise a pure point of law; b. it is argued on the assumption that all the facts pleaded by the other side are correct; and c. it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid Preliminary Objection should, if successful, dispose of the suit or application. The 1st Respondent state that the Environment and Land Court has the jurisdiction to hear the matter as the proceedings emanating from the taxation decision by the Taxing Master of the Land and Environment and Land Court. On the other hand, the Applicant stated that the taxation was done by the judicial officer as a Taxing Master and not as a Deputy Registrar, and as per the Advocates Remuneration Order, the court is defined as the High Court or the Resident Magistrates Court. The court has the jurisdiction to determine the reference. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19603/eng@2025-11-06 2

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11. The Constitution of Kenya under Article 162 (2) (b) establishes the Environment and Land Court. It provides as follows; Systems of courts 162 (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (b) 12. the environment and the use and occupation of, and title to, land. The jurisdiction of the court is mentioned under section 13 (1) and (2) of the Environment and Land Court Act, No. 19 of 2011 which provides as follows; Jurisdiction of the Court (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes― (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land. 13. I have perused through the 1st Respondents submissions. I do agree the submissions as stated in paragraph 11 to 16 of the submissions. I do adopt the holding of Justice PJO Otieno in the case of Monyo & 2 others v Ngige (Misc. Civil App. No. E007 of 2020 [2023] KEHC 817 (KLR) (10 February 2023) (Ruling) where it was held that ‘for purposes of taxation of Party and Party Costs, that must be conducted in the suit in which costs were awarded’ as the court ought to ‘take full charge of the disputes before it and the related and incidental disputes emanating and flowing therefrom’. 14. The 1st Respondent also relied on the case of KTK Advocates v Nairobi County Government (Misc Cause No. e056 of 2020) [2024] KEELC 5467 (KLR), it was held that even though Rule 11 of the Advocates Remuneration Order gives the High Court the jurisdiction to handle applications therein, the new Constitution having established the courts of equal status to the High Court, the relevant courts have jurisdiction to handle the matter under the Advocates Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19603/eng@2025-11-06 3

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15. The issue of jurisdiction was settled in the case of “Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR where Justice Nyarangi, JA, as then he was held as follows: “ 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 http://www.kenyalaw.org - Page 8/27 Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR 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 cognizance 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 cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given” 16. From the provisions of the law as stated herein above, the court that has jurisdiction over this matter is the Environment and Land Court. This court has got no jurisdiction to entertain this matter 17. With no jurisdiction over the matter, this court has got no option but to down its tools. Consequently, I find that the Notice of Motion dated 01/10/2024 is merited and the Chamber Summons dated 18/09/2024 is hereby struck out. The Preliminary Objection is therefore merited. 18. On costs, it is settled that the same follows the event. However, the court retains discretion whether to grant them or not. Furthermore, this discretion must be exercised judiciously and courts should not deprive a party of his or her costs unless it can be shown that they acted unreasonably. I find no reason to deny the 1st Respondent the costs of this application. Determination 19. Having found as above, the following orders flow therefrom: - a. The Preliminary Objection dated 01/10/2024 is hereby upheld. b. The Chamber Summons dated 18/09/2024 is hereby struck out. c. Costs to the 1st Respondent d. File is hereby closed Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19603/eng@2025-11-06 4

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DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 6TH DAY OF NOVEMBER, 2025. …………………. HON. F. WANGARI JUDGE In the presence of: Mr. Baraza Advocate h/b for Mr. Khagram Advocate for the Applicant Ms. Machogu Advocate h/b for Mr. Oluga Advocate for the 1st Respondent N/A by the 2nd and 3rd Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19603/eng@2025-11-06 5

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