Morris Kira Mungai v Nduati Mungai

Land Court which is a court of equal status with the High Court and to which the law confers the requisite jurisdiction. The Applicant’s Submissions 5. The applicant argues that the instant application seeks leave to appeal out of time against judgment of the lower court that ordered him to vacate LR. No. Chania Ngorongo787, issued an eviction order and granted a permanent injunction. The applicant further argues that the present application does not seek determination of any substantive issues regarding ownership, occupation or use of land but rather the procedural issue of enlargement of time to appeal, a matter squarely within the jurisdiction of the current court pursuant to Section 8(3) and 75 of the Civil Procedure Act. 6. The applicant refers to Section 18 of the Civil Procedure Act and the case of Kithaka vs Attorney General [2005] eKLR and submits that the instant court has the jurisdiction to transfer the appeal to the ELC Court for hearing and determination. The Law Whether the preliminary objection is sustainable. 7. The case of Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection. The court observed thus:…..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. 8. Sir Charles Newbold P. stated:A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop. 9. Similarly the Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR held that: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. 10. Further in the case of Hassan Nyanje Charo vs Khatib Mwashetani & 3 Others, [2014] eKLR the court held that:“ Thus a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record." 11. Evidently, a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law. 12. The respondent argues that the court does not have jurisdiction to entertain the application dated 28th January 2025 as it seeks leave to file an appeal out of time which appeal emanates from the ELC Magistrate’s Court in Gatundu being ELC No. E004 of 2024. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19744/eng@2025-06-12 2

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13. The law on the question of jurisdiction was enunciated in the case of Owners of the Motor Vessel “Lilian S” vs Caltex Kenya Limited [1989] KLR 1 where the court held: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 downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. 14. On the source of jurisdiction, it was held in the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & Others (2012) eKLR that:A court’s jurisdiction fiows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. 15. Article 165(3) of the Constitution confers the High Court with jurisdiction and provides:(3) Subject to clause (5), the High Court shall have – a. 16. It is instructive to note that the jurisdiction is subject to Article 165(5) of the Constitution which provides:(5) 17. Unlimited original jurisdiction in criminal and civil matters; The High Court shall not have jurisdiction in respect of matters:a. 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). Pursuant to Article 162(2) of the Constitution, the Environment and Land Court Act 2011 was enacted and in Section 13 it confers the Environment and Land Court with jurisdiction as follows:(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes- 18. a. Relating to environment planning and protection, climate issues, land use plannings, 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, chooses in action or other instruments granting any enforceable interests in land; and e. Any other dispute relating to environment and land. Further Section 13(1) and (2) of the Environment and Land Court Act confers jurisdiction upon the Environment and Land Court to deal with all disputes relating to land. It provides: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 the environment and land. In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19744/eng@2025-06-12 3

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a. Relating to environment 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. 19. I have perused the judgment of the Magistrate’s Court Gatundu in MCL & E Case No. E004 of 2024 and noted that the respondent therein sought judgment against the applicant for vacant possession of the suit premises LR ChaniaNgorongo787; an eviction order against the applicant and removal of any structure on LR ChaniaNgorongo787 as well as a permanent order restraining the applicant or his agents from encroaching, trespassing or in any way affecting the quiet enjoyment of the respondent’s property LR ChaniaNgorongo787. It is evident that the suit in the lower court, the subject of the intended appeal relates to the occupation and ownership of land. Relying on Article 162 of the Constitution and Section 13 of the Environment and Land Court Act, the ELC Court is possessed of the jurisdiction to hear the application dated 28th January 2025 and also any appeal that may arise from the said lower court case. 20. As such, I am of the considered view that this court lacks jurisdiction to entertain the application dated 28th January 2025. 21. The preliminary objection is hereby upheld and the application struck out with costs to the respondent. 22. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 12TH DAY OF JUNE 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19744/eng@2025-06-12 4

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