- By a Plaint dated 15.10.24 the Plaintiffs sued the defendants seeking that the court makes a declaration that the 2nd Defendant is not a bonifide director of the 1st Plaintiff Company and thus not entitled to participate in any of the 1st plaintiff meetings including a board meeting, A declaration that the purported appointment of the 2nd Defendant and subsequent inclusion in the first register of directors is irregular illegal fraudulent and otherwise null and avoid ab initio and that any meetings and/or transaction held / done with them are unlawfully and any resolution made thereon is in valid. They also sought that the court declare that the 1st Defendant’s conduct amount to breach of his fiduciary duty to the 1st Plaintiff. The Plaintiff further sought for an order of mandatory injunction compelling the third defendant to expunge the 2nd Defendants name from the first plaintiffs register and list of directors and further that the Defendants be restrained from interfering with the same forthwith. Cost of the suit was also prayed for.
- A companying the Plaint was an application dated 15.10.24 seeking leave to continue the derivative claim on behalf of the 1st Plaintiff, temporary injunction against the defendants.
- Upon entering Appearance the Respondents raised a preliminary objection as to the jurisdiction of the court prayer (c) of their application dated 29.10.24 and argued that the issue before this court is a dispute relating to the Environment and the use and occupation of title to land by virtue of Article 165 (5) of the Constitution and Section 13 of the Environment and Land Court Act.
- It is well settled principle in law that a court acting without jurisdiction is acting in vain. In Owners of Motor Vessels Lilian S’ vs. Caltex Oil (Kenya) Limited 1989 KLR 1 Nyarangi J A. stated as follows: -
“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.”
5. The suit herein relates to mining activities as per Mining Permit No. MP/2021/0418 in which the Applicants in the application dated 15.10.24 are asking this court to restrain the Respondent from alienating any property on the licenced area removing ore or in any way whatsoever dealing with the licenced area of the 1st Applicant company pending the hearing and determination of this application. Although the Applicants argued that the matter herein is a derivative suit it is obvious that the subject matter is mining and minerals and falls under the provisions of Section 13 of the Environment and Land Act where the Environment and Land Court is conferred with the jurisdiction to hear and determine disputes relating to Environment Planning and Protection, Land use planning, Title, Tenure, boundaries, rates, valuations, mining, minerals and other natural resources; disputes relating to public, private and community land and contracts, choses in action or instruments granting any enforceable interests in land and any other dispute relating to Environment and Land. The declaratory rights that the Respondents are seeking from this court are equally capable of being granted by the Environment and Land Court pursuant to Article 162 (2) (b) and Section 13 (7) of the Environment and Land Act.
6. In the circumstances this court upholds the preliminary objection and strike out the suit herein with no orders as to costs.
Delivered dated and signed at Migori this 21st day of November, 2024.