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JudgmentJARED OTIENO AWELO VS State Law AND ERICK OKOTH NYANGA5 min read

JARED OTIENO AWELO VS State Law AND ERICK OKOTH NYANGA

Environment and Land Court at Homabay Environment and Land Court · · G. A. Ongondo


  1. The present ruling is in regard to the preliminary objection dated 9th May 2024 by the 1st respondent through Ongoso and Company Advocates to the entire petition and application dated 6th March 2024 that the same be dismissed and or struck out at the first instance on the grounds infra;  (a)  The entire petition seeking to quash the orders of Minister ought to have been brought by a Judicial Review application and not a petition seeking a breach of fundamental rights and freedoms under the Bill of Rights.  (b)  The court lacks jurisdiction to entertain the said petition and to grant the orders sought vide the said petition and to grant the orders sought vide the said petition.   (c)   The petition and the application is defective as the said petition offends Order 53 Rule 1 of the Civil Procedure Rules 2010 (The Rules herein) and no leave was sought to the same.  (d)   The petitioner has failed to enjoin the Minister as per section 29 of the Land Adjudication Act whose decision is being challenged and as thus the entire petition is defective ab initio.  (e)  The sections cited in the petition have not shown infringement on the rights of the petitioner neither which rights were infringed by the Land Adjudication Act.
  2. In the Notice of Motion application dated 6th March 2024, the petitioner/applicant through LK Obwanda and Company Advocates, is seeking the orders, inter alia; a temporary order of injunction restraining the respondents from implementing the minister’s decision issued in land appeal case No. 91 of 1997 on plot number Kanyamwa/K/K/Kadwet/366 by trespassing into it, among other activities, pending the hearing and determination of the petition.
  3. On 13th May 2024, the court directed that the preliminary objection be heard by way of written submissions.
  4. Accordingly, in the submissions dated 23rd May 2024, learned counsel for the 1st respondent termed the petition and the application misplaced as no leave of the court was sought under Order 53 of the Civil Procedure Rules 2010. That the said procedure was unique and Judicial relief should not be mixed with other remedies. That the heading of the application under Order 53 (supra) should be in the name of the Republic hence, the application is not compliant as noted in the case of Farmers Bus Service and others-vs-Transport Licencing Appeal Tribunal (1959) EA 779.
  5. Further, counsel referred to the grounds of the preliminary objection and the orders sought in the application. That there is no precise reference to the Constitutional provisions allegedly violated. To buttress the submissions, counsel relied on Mumo Matemu-vs-Trusted Society of Human Rights Alliance & 5 others (2013) eKLR , Communication Commissions of Kenya & 5 others-vs-Royal Media Services Ltd & 5 others (2014) eKLR and Anarita Karimi Njeru-vs-Republic (1979) eKLR.
  6. By the submissions dated 3rd July 2024, learned counsel for the petitioner stated that the petition is hinged upon violation of the right under Article 40 of the Constitution by the 2nd and 3rd respondents who purport to implement the minister’s decision which arose from the decision of the Land Adjudication Officer. That the petitioner has the right to institute the petition pursuant to Article 22 of the Constitution of Kenya 2010 (The Constitution).
  7. Also, counsel submitted in part that failure to add the minister should not render the petition defective in view of Order 8 Rule 5  of the Rules  That this court has jurisdiction over the petition pursuant to Article 162 (2) (b) of the Constitution , section 13 of the Environment and Land Court Act 2015 (2011) as well as Owners of Motor Vesell Lilian ‘S’-vs-Caltex Oil (Kenya) Ltd (1989) KLR 1 and Stringer Muzungu Lumwe and another-vs-Shida Tuji Tsuma and 2 others (2021) eKLR on jurisdiction. That therefore, the preliminary objection is unmerited and urged the court to dismiss it with costs.
  8. In the foregone, is the preliminary objection meritorious?
  9. On the first and third grounds as stated in paragraph 1 (a) and (c) hereinabove, the petitioner/applicant originated the petition under, inter alia, Articles 40, 47 and 50 of the Constitution seeking a declaration that the respondents have violated his rights under the Constitution, the Land Registration Act and the Land Adjudication Act, among other orders. In that regard,  the petitioner has the right to institute the petition in the spirit of Article 22 (1) of the Constitution.
  10. Furthermore, under Article 23 of the Constitution, this court has the mandate to grant appropriate relief including Judicial Review in this petition and the same is prayer number (g) therein. Thus, the alleged non-compliance with Order 53 (supra), is farfetched, superfluous and invalid.
  11. As regards the second ground, the term ‘Jurisdiction’ is defined in Halsbury’s Laws of England 4th Edition Volume 9 at page 350 as follows;

‘….the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for decision……….’

12. It is trite law that a court’s jurisdiction flows from either the Constitution or legislation or both; see Samwel  Kamau Macharia and another -vs-Kenya Commercial Bank Ltd and others (2012) eKLR.

13. Further, lack of jurisdiction renders a court’s decision void as held by the Supreme Court of Republic of Kenya in the case of Karisa Chengo and 2 others (2017) eKLR. Besides, this court is seized of the jurisdiction in respect of the application and the petition in entirety as provided for under Article 162 (2) (b) of the Constitution of Kenya 2010 and section 13 of the Environment and Land Court Act 2015 (2011) in the circumstances.

14. Concerning the fourth ground, the court is not unaware of the meaning of the term ‘Joinder’ in the Concise Oxford English Dictionary 12th Edition. Clearly, the Minister has not been joined as a party to the petition. Nonetheless, any party including the Minister, may be joined as such pursuant to Order 1 Rule 10 of the Rules and Order 8 Rule 5 of the same Rules.

15. On the fifth ground, the test on infringement or violation of the petitioner’s fundamental rights cannot be interrogated at this stage of the petition since that issue can only be dealt with at the hearing of the petition. Bearing in mind Anarita Karimi  Njeru and Lumwe cases (supra), the petitioner and the respondents have the right to unlimited fair hearing of the petition as provided for under articles 25 (c ), 50 (1) and 159 (2) (b) and (d) of the Constitution of Kenya 2010

16. To that end, I find that the preliminary objection lacks merit. The same fails.

17. A fortiori, the 1st respondent’s preliminary objection dated 9th May 2024, be and is hereby disallowed with costs in the cause.

18. It is so ordered.

DATED and DELIVERED at HOMA BAY this 30TH DAY OF SEPTEMBER 2024

G  M  A  ONGONDO

JUDGE

PRESENT;

Ms Kimberley instructed by Obwanda learned counsel for the petitioner

Mr Jack Otieno instructed by Ongoso learned counsel for the 1st respondent

Mr T. Luanga, court assistant

    JARED OTIENO AWELO VS State Law AND ERICK OKOTH NYANGA JARED OTIENO AWELO VS State Law AND ERICK OKOTH NYANGA