(Being an Appeal from the Ruling of the Chief Magistrate’s Court at Kikuyu Civil Case No. 127 of 2021 of Senior Principal Magistrate Hon. J.A. Orwa delivered on 21st October, 2021)
JUDGMENT
Brief facts
1. The appeal before this court is by the plaintiff (hereinafter the appellant). It is against the Ruling by the trial court, which the learned Magistrate declined to grant interest and costs in favour of the Appellant.
2. The appellant filed suit against the respondent thereto being a claim relating to a breach of Agreement of Sale and Purchase of property dated 15th April, 2019; for Maisonette No. 24 erected on Title Number Dagoretti/Thogoto/4731, where the Respondent failed to complete the transaction and further failed to reimburse the Appellant for the purchase price of Kshs.9,000,000/=.
3. During the subsistence of the suit, was referred to Mediation, which determination was partially successful as parties executed a Mediation Agreement, wherein on 22nd July, 2022, the parties recorded a consent pursuant to the said agreement wherefore the Respondent was to repay the deposit sums by 30th November, 2022, and the issues of legal fees and interest left for determination of the court, which determination on the said issues is pertinent to the instant appeal.
4. Aggrieved by the Ruling, the Appellant instituted this appeal by way of a memorandum of appeal dated 17th November, 2022 on grounds that;
I. The learned Magistrate erred in failing to appreciate that the Respondent’s deliberate delay in refunding the purchase price to the Appellant and the Respondent’s frustration of the commencement of the mediation proceedings were wrongful acts on the part of the Respondent that entitled the Appellant as the successful party in the mediation to an award of interest and costs pursuant to Sections 26 (1) and 27 (1) of the Civil Procedure Act.
II. The learned Magistrate erred in failing to award costs to the Appellant by disregarding the general rule that costs follow the event as set out in Section 27 (1) of the Civil Procedure Act. The learned Magistrate did not provide reasons and/or grounds for departing from the general rule.
5. The Respondent in opposition of the appeal replied by way of a Notice of Preliminary Objection dated 31st May, 2024, seeking inter alia the dismissal and/or striking out with costs the entire appellant’s appeal, for this court lacks jurisdiction to entertain, hear and/or determine the same on the grounds;
I. THAT the instant appeal is fatally defective as it offends Sections 13 (2) and 16A (1) of the Environment and Land Court Act Cap 8D Laws of Kenya given that this court lacks jurisdiction to hear and determine the appeal since the dispute in the trial court related to the sale and purchase of property Maisonette No. 24 erected on the Title Number Dagoretti/Thogoto/4731 a matter within the meaning of Section 13 (2) (d) of the Environment and Land Act Cap 8D and as such any decision in this appeal by this Honourable Court sitting as the High Court Civil Appeal will amount to usurping the jurisdiction of the Environment and Land Court.
II. THAT in the circumstances, the Appellant’s appeal dated 17th November, 2022 and the orders/prayers sought in therein are a monumental procedural and substantive legal nullity and a proper candidate for dismissal and/or striking out with costs to the Respondent.
6. By directions of the court, both the preliminary objection and the appeal were canvassed by way of written submissions, specifically, dated 28th May,2024 and 3rd June, 2024 by the appellant, and dated 5th June, 2024 and 14th June, 2024 by the Respondent, which divisive arguments, the cited persuasive authorities and position of law, I have considered and I hereby determine as hereunder.
Analysis and Determination
7. Noting the ominous ripple of effect of a preliminary objection, herein, questioning this court’s jurisdiction to determine the appeal, this court shall endeavor to dispense with the same on priority basis, and thereafter consider the merits of the appeal, if unsuccessful.
8. A Preliminary Objection rests on the proposition that when raised, its fundamental accomplishment will have a bearing on disposing of a matter because it raises pure points of law. It also underscores the need for prudent management of time as a Court resource by summarily flagging out a frail and hopeless suit that if admitted to full trial, will be a waste of judicial time and will not serve the interest of justice. See Kinuthia v Kanyi & another (Environment & Land Case E007 of 2023) [2024] KEELC 1625 (KLR).
9. The Supreme Court in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR made the following observation as relates to Preliminary Objections:
“…The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection— against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”
10. The bone of objection herein rests squarely on the jurisdiction of this Court, as held by Nyarangi JA.in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR: -
“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 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.”
11. In summary, the respondent argues that the instant appeal is instituted in the wrong forum, as it offends Sections 13 (2) and 16A (1) of the Environment and Land Court Act Cap 8D Laws of Kenya.
12. Jurisdiction is conferred by the Constitution and by legislation. With regard to land matters, the Constitution of Kenya 2010, at Article 162(2) (a), located in an article which provides for the system of superior courts in Kenya, allocates jurisdiction over land matters to a court, with status equal to the High Court, to be established through an Act of Parliament.
13. Parliament passed legislation, the Environment and Land Court Act, No. 19 of 2011, in obedience to Article 162(2)(3) of the Constitution, to establish the court envisaged in Article 162(2) (b), and to set out the jurisdiction of the said court.
14. The scope and jurisdiction of the Environment and Land Court is set out in Section 13 of the Environment and Land Court Act, which states as follows:
“13. 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 the 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.”
15. In as far as matters to land and/or contracts relating to land, the appellate jurisdiction is circumscribed by Sections 13 (1) and 16A (1) of the Environment and Land Court Act, 2011. Section 16A (1) provides:
All appeals from subordinate courts and local tribunals shall be filed within a period of thirty days from the date of the decree or order appealed against in matters in respect of disputes falling within the jurisdiction set out in Section 13(2) of the Environment and Land Court Act .
16. I needlessly reiterate that the instant appeal is pursuant to the Ruling of the court whereby the appellant felt aggrieved for the fact that the learned Magistrate declined to grant interest and costs, after the Mediation proceedings determined in his favour save for the aforementioned.
17. The ratio decidendi as proffered by the trial court in its Ruling was as follows;
“The defendant on the other hand cited the special provisions of the agreement entered into by the parties that bind them in terms of the interest payable and in particular clause and special condition 4.5 which stipulated for a refund of purchase price to the purchaser by the seller without payment of interest.
Further, that the intention if the partes was duly captured in the agreement between the plaintiff and the defendant sited. The agreement provided for mediation which eventually partially succeeded... (sic)
The plaintiff has not disputed the contents of clause/special condition 4.5 of the agreement. The intention of in putting a mediation clause in an agreement/transaction is to fast-track settlement of the dispute between disputants and reap the benefits accruing from alternative dispute resolution mechanisms.
I have taken note of the circumstances leading to matter being filed in court notwithstanding, parties were referred for mediation as provided for in the agreement they voluntarily executed on the 15th April, 2019. It is not in dispute that no interest was intended to be paid to the purchaser in the event of default by seller save for refund of purchase price. No coercion was raised by the plaintiff in executing the agreement on 15.4.2019 in the pleadings filed in court. Having been guided by the cases on record by parties and in the spirit of promoting reconciliation between parties herein, I find no basis to order for award of interest on the principal sum payable to the plaintiff the defendant.”
18. It would follow that the trial court based its reasoning and determination on the terms and prerogative of the Agreement of Sale and Purchase of property dated 15th April, 2019; which considerations are matters in respect of disputes falling within the jurisdiction set out in Section 13(2) of the Act. Simply put, any dispute as to any reprieve, entitled or not, to a party in the agreement of sale and/or purchase of the suit property, which is provided in the terms thereto, can only be canvassed before the Environment and Lands Court, including the issues raised in the instant appeal.
19. The scope and extent of this court’s jurisdiction is provided under Article 165 of the Constitution, 2010. Article 165(5) specifies areas in which the High Court has no jurisdiction, and these include matters that fall under Article 162(2) of the Constitution. The relevant portions of Article 165 state as follows:
“(5) The High Court shall not have jurisdiction in respect of matters—
(a) …
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).”
20. The ripple effect of these provisions is that the High Court has no jurisdiction to handle matters that fall under the jurisdiction of the Environment and Land Court. The dispute that has been placed before me relates to the award of interests, over the refund of a deposit amount for the sale and/or purchase of a sectional property, if any, as provided for by the Agreement of Sale and Purchase of property dated 15th April, 2019; for Maisonette No. 24 erected on Title Number Dagoretti/Thogoto/4731.
21. It is not lost to me that the dictates Article 159(2) (d) of the Constitution, prescribe that a Court of Law should not pay undue attention to procedural requirements at the expense of substantive justice. This notwithstanding, the oxygen principle was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the Court. See Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 others [2014] eKLR.
22. The Constitution is emphatic that the High Court shall not superintend over disputes that fall within the jurisdiction of the courts contemplated by Article 162(2) of the Constitution. I would be navigating on barred tides, if I proceed to entertain the appeal herein. Any further step would be rendered nugatory.
23. As to the dispute on the award of costs, the proper forum, herein the Environment and Lands Court; clothed with the requisite jurisdiction to determine the substratum of appeal herein, will easily dispense on the same.
24. Accordingly, I find merit in the preliminary objection dated 31st May, 2024, and consequently, the appeal in its entirety is struck out with costs, for want of jurisdiction.
25. The costs of this appeal are assessed at an all-inclusive sum of Ksh 50, 000/=. Orders accordingly.
Dated, Signed and Delivered at NAIROBI Virtually this ………31ST……Day of JULY, 2024.
……………………
WENDY MICHENI
JUDGE
JUDGMENT
Brief facts
1. The appeal before this court is by the plaintiff (hereinafter the appellant). It is against the Ruling by the trial court, which the learned Magistrate declined to grant interest and costs in favour of the Appellant.
2. The appellant filed suit against the respondent thereto being a claim relating to a breach of Agreement of Sale and Purchase of property dated 15th April, 2019; for Maisonette No. 24 erected on Title Number Dagoretti/Thogoto/4731, where the Respondent failed to complete the transaction and further failed to reimburse the Appellant for the purchase price of Kshs.9,000,000/=.
3. During the subsistence of the suit, was referred to Mediation, which determination was partially successful as parties executed a Mediation Agreement, wherein on 22nd July, 2022, the parties recorded a consent pursuant to the said agreement wherefore the Respondent was to repay the deposit sums by 30th November, 2022, and the issues of legal fees and interest left for determination of the court, which determination on the said issues is pertinent to the instant appeal.
4. Aggrieved by the Ruling, the Appellant instituted this appeal by way of a memorandum of appeal dated 17th November, 2022 on grounds that;
I. The learned Magistrate erred in failing to appreciate that the Respondent’s deliberate delay in refunding the purchase price to the Appellant and the Respondent’s frustration of the commencement of the mediation proceedings were wrongful acts on the part of the Respondent that entitled the Appellant as the successful party in the mediation to an award of interest and costs pursuant to Sections 26 (1) and 27 (1) of the Civil Procedure Act.
II. The learned Magistrate erred in failing to award costs to the Appellant by disregarding the general rule that costs follow the event as set out in Section 27 (1) of the Civil Procedure Act. The learned Magistrate did not provide reasons and/or grounds for departing from the general rule.
5. The Respondent in opposition of the appeal replied by way of a Notice of Preliminary Objection dated 31st May, 2024, seeking inter alia the dismissal and/or striking out with costs the entire appellant’s appeal, for this court lacks jurisdiction to entertain, hear and/or determine the same on the grounds;
I. THAT the instant appeal is fatally defective as it offends Sections 13 (2) and 16A (1) of the Environment and Land Court Act Cap 8D Laws of Kenya given that this court lacks jurisdiction to hear and determine the appeal since the dispute in the trial court related to the sale and purchase of property Maisonette No. 24 erected on the Title Number Dagoretti/Thogoto/4731 a matter within the meaning of Section 13 (2) (d) of the Environment and Land Act Cap 8D and as such any decision in this appeal by this Honourable Court sitting as the High Court Civil Appeal will amount to usurping the jurisdiction of the Environment and Land Court.
II. THAT in the circumstances, the Appellant’s appeal dated 17th November, 2022 and the orders/prayers sought in therein are a monumental procedural and substantive legal nullity and a proper candidate for dismissal and/or striking out with costs to the Respondent.
6. By directions of the court, both the preliminary objection and the appeal were canvassed by way of written submissions, specifically, dated 28th May,2024 and 3rd June, 2024 by the appellant, and dated 5th June, 2024 and 14th June, 2024 by the Respondent, which divisive arguments, the cited persuasive authorities and position of law, I have considered and I hereby determine as hereunder.
Analysis and Determination
7. Noting the ominous ripple of effect of a preliminary objection, herein, questioning this court’s jurisdiction to determine the appeal, this court shall endeavor to dispense with the same on priority basis, and thereafter consider the merits of the appeal, if unsuccessful.
8. A Preliminary Objection rests on the proposition that when raised, its fundamental accomplishment will have a bearing on disposing of a matter because it raises pure points of law. It also underscores the need for prudent management of time as a Court resource by summarily flagging out a frail and hopeless suit that if admitted to full trial, will be a waste of judicial time and will not serve the interest of justice. See Kinuthia v Kanyi & another (Environment & Land Case E007 of 2023) [2024] KEELC 1625 (KLR).
9. The Supreme Court in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR made the following observation as relates to Preliminary Objections:
“…The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection— against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”
10. The bone of objection herein rests squarely on the jurisdiction of this Court, as held by Nyarangi JA.in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR: -
“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 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.”
11. In summary, the respondent argues that the instant appeal is instituted in the wrong forum, as it offends Sections 13 (2) and 16A (1) of the Environment and Land Court Act Cap 8D Laws of Kenya.
12. Jurisdiction is conferred by the Constitution and by legislation. With regard to land matters, the Constitution of Kenya 2010, at Article 162(2) (a), located in an article which provides for the system of superior courts in Kenya, allocates jurisdiction over land matters to a court, with status equal to the High Court, to be established through an Act of Parliament.
13. Parliament passed legislation, the Environment and Land Court Act, No. 19 of 2011, in obedience to Article 162(2)(3) of the Constitution, to establish the court envisaged in Article 162(2) (b), and to set out the jurisdiction of the said court.
14. The scope and jurisdiction of the Environment and Land Court is set out in Section 13 of the Environment and Land Court Act, which states as follows:
“13. 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 the 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.”
15. In as far as matters to land and/or contracts relating to land, the appellate jurisdiction is circumscribed by Sections 13 (1) and 16A (1) of the Environment and Land Court Act, 2011. Section 16A (1) provides:
All appeals from subordinate courts and local tribunals shall be filed within a period of thirty days from the date of the decree or order appealed against in matters in respect of disputes falling within the jurisdiction set out in Section 13(2) of the Environment and Land Court Act .
16. I needlessly reiterate that the instant appeal is pursuant to the Ruling of the court whereby the appellant felt aggrieved for the fact that the learned Magistrate declined to grant interest and costs, after the Mediation proceedings determined in his favour save for the aforementioned.
17. The ratio decidendi as proffered by the trial court in its Ruling was as follows;
“The defendant on the other hand cited the special provisions of the agreement entered into by the parties that bind them in terms of the interest payable and in particular clause and special condition 4.5 which stipulated for a refund of purchase price to the purchaser by the seller without payment of interest.
Further, that the intention if the partes was duly captured in the agreement between the plaintiff and the defendant sited. The agreement provided for mediation which eventually partially succeeded... (sic)
The plaintiff has not disputed the contents of clause/special condition 4.5 of the agreement. The intention of in putting a mediation clause in an agreement/transaction is to fast-track settlement of the dispute between disputants and reap the benefits accruing from alternative dispute resolution mechanisms.
I have taken note of the circumstances leading to matter being filed in court notwithstanding, parties were referred for mediation as provided for in the agreement they voluntarily executed on the 15th April, 2019. It is not in dispute that no interest was intended to be paid to the purchaser in the event of default by seller save for refund of purchase price. No coercion was raised by the plaintiff in executing the agreement on 15.4.2019 in the pleadings filed in court. Having been guided by the cases on record by parties and in the spirit of promoting reconciliation between parties herein, I find no basis to order for award of interest on the principal sum payable to the plaintiff the defendant.”
18. It would follow that the trial court based its reasoning and determination on the terms and prerogative of the Agreement of Sale and Purchase of property dated 15th April, 2019; which considerations are matters in respect of disputes falling within the jurisdiction set out in Section 13(2) of the Act. Simply put, any dispute as to any reprieve, entitled or not, to a party in the agreement of sale and/or purchase of the suit property, which is provided in the terms thereto, can only be canvassed before the Environment and Lands Court, including the issues raised in the instant appeal.
19. The scope and extent of this court’s jurisdiction is provided under Article 165 of the Constitution, 2010. Article 165(5) specifies areas in which the High Court has no jurisdiction, and these include matters that fall under Article 162(2) of the Constitution. The relevant portions of Article 165 state as follows:
“(5) The High Court shall not have jurisdiction in respect of matters—
(a) …
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).”
20. The ripple effect of these provisions is that the High Court has no jurisdiction to handle matters that fall under the jurisdiction of the Environment and Land Court. The dispute that has been placed before me relates to the award of interests, over the refund of a deposit amount for the sale and/or purchase of a sectional property, if any, as provided for by the Agreement of Sale and Purchase of property dated 15th April, 2019; for Maisonette No. 24 erected on Title Number Dagoretti/Thogoto/4731.
21. It is not lost to me that the dictates Article 159(2) (d) of the Constitution, prescribe that a Court of Law should not pay undue attention to procedural requirements at the expense of substantive justice. This notwithstanding, the oxygen principle was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the Court. See Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 others [2014] eKLR.
22. The Constitution is emphatic that the High Court shall not superintend over disputes that fall within the jurisdiction of the courts contemplated by Article 162(2) of the Constitution. I would be navigating on barred tides, if I proceed to entertain the appeal herein. Any further step would be rendered nugatory.
23. As to the dispute on the award of costs, the proper forum, herein the Environment and Lands Court; clothed with the requisite jurisdiction to determine the substratum of appeal herein, will easily dispense on the same.
24. Accordingly, I find merit in the preliminary objection dated 31st May, 2024, and consequently, the appeal in its entirety is struck out with costs, for want of jurisdiction.
25. The costs of this appeal are assessed at an all-inclusive sum of Ksh 50, 000/=. Orders accordingly.
Dated, Signed and Delivered at NAIROBI Virtually this ………31ST……Day of JULY, 2024.
……………………
WENDY MICHENI
JUDGE