' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
HIGH COURT CIVIL APPEAL NO. 18 OF 2024
ANNE MATO ............................................................................................. 1 ST APPELLANT
EDWARD OPONDO ………………………………………………………….. 2 ND APPELLANT
VERSUS
ALICE LILIAN ACHIENG ............................................................................. RESPONDENT
JUDGMENT
Before the trial court was a suit initiated by a plaint dated 1 st December, 2023 and filed in court on the 4 th December 2023. In it the Plaintiff (now Respondent) sought two declarations; that upon death of one Paul Opondo, the title and ownership of that parcel of land. Known as Plot No. 47 in Parcel No. LR 6623, Makhombe Farm, Kitale Municipality, vested in her and she thus be registered as its sole proprietor, and that the 1 st Defendant (now 1 st Appellant is a trespasser of the said land.
The plaint equally prayed for an order of eviction of the 1 st Appellant from the property with an additional prayer for permanent injunction against the two Appellants. It would appear that, there was a Notice of Motion dated 1 st December, 2023 seeking interim and temporary injunction pending determination of suit which was contemporaneously filed with the plaint.
That motion was resisted by the Appellants by a Replying Affidavit sworn on 18 th December, 2023, by the 1 st Appellant as well as grounds of opposition dated the 8 th January, 2024.
The records shows that both sides filed submissions in canvassing of the application. The Appellants’ submissions are dated 18 th January, 2024 while those by the Respondent were dated 16 th January, 2024.
Based on the submission, the trial court delivered a ruling dated 20 th March 2024 which found the application merited. The Respondent was granted temporary orders of injunction against the Appellants from evicting or denying the Respondent free and unrestricted access to the property and from charging, selling or transferring the suit property pending the determination of the suits.
That decision did provoke the current appeal which enumerates seven grounds of appeal as follows: -
THAT the learned magistrate erred in law and in fact by failing to appreciate the fact that the Respondent did not have locus standi to institute the suit in respect of the subject matter, the same being jointly owned by the 1 st Appellant one Paul Opondo who passed away on 17 th September, 2023 and no Letters of Administration taken out.
THAT the Learned trial magistrate erred in law and fact by failing to appreciate of the existence of continuous and uninterrupted physical and actual occupation and ownership of the suit property by the 1 st Appellant.
THAT the learned trial magistrate erred in land and in fact by failing to appreciate that the subject property to wit Plot No. 47 in Land Parcel Number L.R 6623 Makhombe Farm was matrimonial property jointly owned by the 1 st Appellant and one Paul Opondo who is now deceased.
THAT the learned magistrate erred in law and in fact by issuing an injunction against the 1 st Appellant from evicting and/or denying the Respondent free access to the suit property which was premature, irregular and improper and against the evidence/material facts on record since it is the 1 st Appellant who is in current occupation of the suit property.
THAT the learned magistrate erred in fact and in law by its ruling delivered on 20 th March, 2024 which was incoherent and/or mis-informed in as far as who was the rightful owner and occupant of the subject properties Plot No. 47 in Land Parcel Number L.R 6623 Makhombe Farm and against the evidence/material facts on record.
THAT the learned magistrate erred in law and in fact by delivering a ruling that was fatally defective, irregular, and erroneous in view of the evidence adduced by the Appellants before the Honourable Court.
THAT the learned magistrate erred in fact and in law by completely disregarding the Appellants submission on the evidence, facts and issues before court.
It is emergent from the grounds that the trial court is faulted for; failure to find that the Respondent lacked locus standi to bring the suit, failure to find that the 1 st Appellant had always enjoyed continuous and interrupted physical and actual possession of the land as a material property jointly owned between her and the deceased, that the temporary injunction issued was premature, irregular and improper for reason that it was the 1 st Appellant who was always in possession, and lastly, that the ruling was incoherent, misinformed on the facts on ownership and for wholly disregarding the evidence and submissions offered by the appellant.
Both parties have filed respective submissions. While the Appellants have gone full throttle on the merits, the Respondent has on his part has only questioned the jurisdiction of the court to entertain and hear the matter.
Having read the record at trial and the submissions filed, and the court being appreciative that jurisdiction is everything to a court and must be dealt with beforehand and in priority over any other business, the mandate of the court stands out when cut. The court must be satisfied that the law grants it the power to entertain the matter and only when such satisfaction is met would it delve into the merits of the appeal. Should the court find that it lacks the requisite jurisdiction, it has nothing else but to down its tools.
The court has had the benefit of reading the two sets of submissions filed by the parties, notes that those by the Appellant does not address this very important aspect questioning jurisdiction. That failure however does not inhibit the court from considering the point especially where counsel for the Appellant admitted having been served with the submissions but opted to make no comment on the subject. The Appellants’ counsel was content to say that she viewed the matter before the trial court to have been a cause on matrimonial property for which the trial court equally lacked jurisdiction to entertain by dint of Section 17 Matrimonial Property Act.
To determine whether there resides jurisdiction in the court, one must look at the dispute the trial court dealt with in reaching the impugned decision. A reading of the plaint, the application and the responses filed in opposition thereto, reveal that the Respondent made a claim over land alleging that her and one Paul Opondo, she asserts to have been a husband, bought the suit property as spouses. She thus asserted that upon the death of the said Paul Opondo the title to the land vested in her. It is also disclosed that the Respondent individually bought an additional portion of land in 2023 at a consideration of Kshs. 1,050,000/=.
The court notes that the plaint as drawn turns out inelegant and ambivalent whether it is grounded on claim to occupation, use or title to land or claim to matrimonial property. Even the remedies sought suggest that she was claiming both. It is however unequivocal from the heading/title of the plaint that it was identified as a land dispute.
Under Article 165, the High Court is divested of the jurisdiction to handle disputes reserved for the court established under Article 162(2) (b); to handle disputes over environment and the use and occupation of, and title to land.
It is clear to this court that the Respondent was resisting the use and occupation by the Appellants over the disclosed property and asserting her right to be the owner with right to occupy and use same. That was a clear dispute reserved for the Environment and Land Court and the trial court must have dealt with it as such. By dint of Section 13, Environment and Land Court Act, appeals from the magistracy on such dispute are designed and mandated to go before the Environment and Land Court. That finding thus dictate that I down my pen and refrain from delving into the merits of the appeal.
While the Respondent has prayed that I strike out the appeal, this court takes the learning that this court and the Environment and Land Court are of equal status and enjoy coordinate jurisdiction.
To strike out this appeal will affront the attribute and duty of the court, under Section 1A, Civil Procedure Act, to administer substantive justice justly, proportionately, efficiently and in a timely manner. It would affront that duty because this matter has been, by parties filing submissions, heard substantially and what is awaited is a determination of the appeal by the court. To strike out at this level will not only put the financial and human resources so far employed by the parties to waste. That would be an element of escalating the costs of justice to parties. The effect would be to leave the dispute unresolved with the prospects that the parties may have to start afresh and at additional costs. The court declines the invitation to strike out.
While the court entertains no doubt that it lacks jurisdiction to determine the matter, and that it must down its tools, the need for a determination of the dispute must be availed to the parties. The court finds that the course and end of justice would be served best by ordering that the appeal be heard by the court with jurisdiction over it, the Environment and Land Court. To that court the appeal is hereby transferred for hearing and final disposal.
The costs incurred so far shall remain the costs of the appeal.
It is so ordered.
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IN THE HIGH COURT OF KENYA AT KITALE
HIGH COURT CIVIL APPEAL NO. 18 OF 2024
ANNE MATO ............................................................................................. 1 ST APPELLANT
EDWARD OPONDO ………………………………………………………….. 2 ND APPELLANT
VERSUS
ALICE LILIAN ACHIENG ............................................................................. RESPONDENT
JUDGMENT
Before the trial court was a suit initiated by a plaint dated 1 st December, 2023 and filed in court on the 4 th December 2023. In it the Plaintiff (now Respondent) sought two declarations; that upon death of one Paul Opondo, the title and ownership of that parcel of land. Known as Plot No. 47 in Parcel No. LR 6623, Makhombe Farm, Kitale Municipality, vested in her and she thus be registered as its sole proprietor, and that the 1 st Defendant (now 1 st Appellant is a trespasser of the said land.
The plaint equally prayed for an order of eviction of the 1 st Appellant from the property with an additional prayer for permanent injunction against the two Appellants. It would appear that, there was a Notice of Motion dated 1 st December, 2023 seeking interim and temporary injunction pending determination of suit which was contemporaneously filed with the plaint.
That motion was resisted by the Appellants by a Replying Affidavit sworn on 18 th December, 2023, by the 1 st Appellant as well as grounds of opposition dated the 8 th January, 2024.
The records shows that both sides filed submissions in canvassing of the application. The Appellants’ submissions are dated 18 th January, 2024 while those by the Respondent were dated 16 th January, 2024.
Based on the submission, the trial court delivered a ruling dated 20 th March 2024 which found the application merited. The Respondent was granted temporary orders of injunction against the Appellants from evicting or denying the Respondent free and unrestricted access to the property and from charging, selling or transferring the suit property pending the determination of the suits.
That decision did provoke the current appeal which enumerates seven grounds of appeal as follows: -
THAT the learned magistrate erred in law and in fact by failing to appreciate the fact that the Respondent did not have locus standi to institute the suit in respect of the subject matter, the same being jointly owned by the 1 st Appellant one Paul Opondo who passed away on 17 th September, 2023 and no Letters of Administration taken out.
THAT the Learned trial magistrate erred in law and fact by failing to appreciate of the existence of continuous and uninterrupted physical and actual occupation and ownership of the suit property by the 1 st Appellant.
THAT the learned trial magistrate erred in land and in fact by failing to appreciate that the subject property to wit Plot No. 47 in Land Parcel Number L.R 6623 Makhombe Farm was matrimonial property jointly owned by the 1 st Appellant and one Paul Opondo who is now deceased.
THAT the learned magistrate erred in law and in fact by issuing an injunction against the 1 st Appellant from evicting and/or denying the Respondent free access to the suit property which was premature, irregular and improper and against the evidence/material facts on record since it is the 1 st Appellant who is in current occupation of the suit property.
THAT the learned magistrate erred in fact and in law by its ruling delivered on 20 th March, 2024 which was incoherent and/or mis-informed in as far as who was the rightful owner and occupant of the subject properties Plot No. 47 in Land Parcel Number L.R 6623 Makhombe Farm and against the evidence/material facts on record.
THAT the learned magistrate erred in law and in fact by delivering a ruling that was fatally defective, irregular, and erroneous in view of the evidence adduced by the Appellants before the Honourable Court.
THAT the learned magistrate erred in fact and in law by completely disregarding the Appellants submission on the evidence, facts and issues before court.
It is emergent from the grounds that the trial court is faulted for; failure to find that the Respondent lacked locus standi to bring the suit, failure to find that the 1 st Appellant had always enjoyed continuous and interrupted physical and actual possession of the land as a material property jointly owned between her and the deceased, that the temporary injunction issued was premature, irregular and improper for reason that it was the 1 st Appellant who was always in possession, and lastly, that the ruling was incoherent, misinformed on the facts on ownership and for wholly disregarding the evidence and submissions offered by the appellant.
Both parties have filed respective submissions. While the Appellants have gone full throttle on the merits, the Respondent has on his part has only questioned the jurisdiction of the court to entertain and hear the matter.
Having read the record at trial and the submissions filed, and the court being appreciative that jurisdiction is everything to a court and must be dealt with beforehand and in priority over any other business, the mandate of the court stands out when cut. The court must be satisfied that the law grants it the power to entertain the matter and only when such satisfaction is met would it delve into the merits of the appeal. Should the court find that it lacks the requisite jurisdiction, it has nothing else but to down its tools.
The court has had the benefit of reading the two sets of submissions filed by the parties, notes that those by the Appellant does not address this very important aspect questioning jurisdiction. That failure however does not inhibit the court from considering the point especially where counsel for the Appellant admitted having been served with the submissions but opted to make no comment on the subject. The Appellants’ counsel was content to say that she viewed the matter before the trial court to have been a cause on matrimonial property for which the trial court equally lacked jurisdiction to entertain by dint of Section 17 Matrimonial Property Act.
To determine whether there resides jurisdiction in the court, one must look at the dispute the trial court dealt with in reaching the impugned decision. A reading of the plaint, the application and the responses filed in opposition thereto, reveal that the Respondent made a claim over land alleging that her and one Paul Opondo, she asserts to have been a husband, bought the suit property as spouses. She thus asserted that upon the death of the said Paul Opondo the title to the land vested in her. It is also disclosed that the Respondent individually bought an additional portion of land in 2023 at a consideration of Kshs. 1,050,000/=.
The court notes that the plaint as drawn turns out inelegant and ambivalent whether it is grounded on claim to occupation, use or title to land or claim to matrimonial property. Even the remedies sought suggest that she was claiming both. It is however unequivocal from the heading/title of the plaint that it was identified as a land dispute.
Under Article 165, the High Court is divested of the jurisdiction to handle disputes reserved for the court established under Article 162(2) (b); to handle disputes over environment and the use and occupation of, and title to land.
It is clear to this court that the Respondent was resisting the use and occupation by the Appellants over the disclosed property and asserting her right to be the owner with right to occupy and use same. That was a clear dispute reserved for the Environment and Land Court and the trial court must have dealt with it as such. By dint of Section 13, Environment and Land Court Act, appeals from the magistracy on such dispute are designed and mandated to go before the Environment and Land Court. That finding thus dictate that I down my pen and refrain from delving into the merits of the appeal.
While the Respondent has prayed that I strike out the appeal, this court takes the learning that this court and the Environment and Land Court are of equal status and enjoy coordinate jurisdiction.
To strike out this appeal will affront the attribute and duty of the court, under Section 1A, Civil Procedure Act, to administer substantive justice justly, proportionately, efficiently and in a timely manner. It would affront that duty because this matter has been, by parties filing submissions, heard substantially and what is awaited is a determination of the appeal by the court. To strike out at this level will not only put the financial and human resources so far employed by the parties to waste. That would be an element of escalating the costs of justice to parties. The effect would be to leave the dispute unresolved with the prospects that the parties may have to start afresh and at additional costs. The court declines the invitation to strike out.
While the court entertains no doubt that it lacks jurisdiction to determine the matter, and that it must down its tools, the need for a determination of the dispute must be availed to the parties. The court finds that the course and end of justice would be served best by ordering that the appeal be heard by the court with jurisdiction over it, the Environment and Land Court. To that court the appeal is hereby transferred for hearing and final disposal.
The costs incurred so far shall remain the costs of the appeal.
It is so ordered.
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