1. This is an appeal from the ruling of the Subordinate Court dated 16th December 2021 striking out the suit on the ground that the issues raised therein ought to have been determined by the Business Premises Rent Tribunal established under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Chapter 301 of the Laws of Kenya). The Appellant now challenges this decision based on the Memorandum of Appeal dated 27th January 2022.
2. The substance of the Appellant’s case before the Subordinate Court as set out in his Plaint dated 23rd August 2021, the Notice of Motion and the supporting deposition of the same date is that he is a tenant of rented premises on Plot Number 33, Rabai Road, Buruburu Estate Nairobi (“the suit premises”) where he operates a garage business and had done so for 11 years prior to filing the suit. He stated that he had made substantial investments in the suit premises. The gravamen of his case is that the Respondents served him with a 90-day written notice to vacate the suit premises. As he was unwilling to comply with the notices, the Respondents subjected him to threats of forceful eviction. In due course, the Respondents filed Milimani CM Misc. Application No. E1095 of 2021 seeking break in orders to the suit premises. The orders were granted and the 5th Respondent removed goods worth Kshs. 1,200,000.00 from the suit premises. In order to forestall sale of his property, further distress and interference with his business, he filed the suit before the Subordinate Court.
3. Without going into the merits of the suit and application before the Subordinate Court, it is clear that the dispute between the parties is that of landlord and tenant although he disputes the fact that the Respondents are his landlords. At paragraph 17 of his deposition he states as follows:
[17] THAT there is no valid and/or subsisting lease and or tenancy agreement between me and the late Olivio Sagimo or the Respondents and I have been advised by my Advocates, which advice I verily believe to be true, that in the circumstances, the tenancy is a controlled tenancy and I am a protected tenant and therefore eligible for protection by this Honourable Tribunal.
4. On his own admission, the Appellant is a tenant and wishes to protect his tenancy status. It is therefore clear that the dispute between the parties concerns a landlord and tenant and as such it implicates the jurisdiction of this court, the High Court, to determine this matter in light of Article 162(1) and (2)(b) which empowers Parliament to establish courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land. At sub-article (3), Parliament shall determine the jurisdiction and functions of such court. By the Environment and Land Court Act, Act No. 19 of 2011, Parliament established the Environment and Land Court with jurisdiction set out in section 13 which provides, in part, as follows:
13.(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 written law relating to 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 relating to environment and land, including disputes –
(a) relating to environmental planning and protection, trade, 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.
5. In my view a tenancy dispute is a dispute involving an interest in land and it ought to be resolved by the Environment and Land Court, and that the High Court has no jurisdiction in such matters. In James Moses Thamu and Others v Joseph Muiruri NRB HCCC No. 171 of 2013 [2013] eKLR, Waweru J., held as follows:
[26].By this definition a lease, which gives exclusive possession of land or premises to the lessee, is an interest in land. It is not a mere or ordinary contract. It is a grant of an interest in land. A tenancy is by definition a lease.
[27] Landlord and tenant disputes therefore are disputes that involve an interest in land.
6. I agree with the above finding and I hold that this court lacks jurisdiction to entertain this appeal in light of Article 165(5) of the Constitution. This is in line with what the Supreme Court stated in Republic v Karisa Chengo and 2 Others SCK Petition No. 5 of 2015 [2017] eKLR, as follows:
[W]e note that pursuant to Article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of Courts, with sui generis jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.
7. Since the appeal was filed in the wrong court, it follows that the appeal cannot be transferred as there is nothing to transfer. In Phoenix of EA Assurance Company Limited v SM Thiga t/a Newspaper Service NRB Civil Appeal No. 244 of 2010 [2019] eKLR the Court of Appeal took the following view on whether a suit filed in a court without jurisdiction. It stated as follows:
Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first placed. If the suit is filed without jurisdiction, the only remedy is to withdraw it and file a complaint one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. without jurisdiction, the Court cannot confer jurisdiction upon itself ...
8. This appeal can only be struck out. It is accordingly struck out with costs to the 1st to 4th Respondents.
9. The costs of the appeal are assessed at Kshs. 15,000.00.
DATED and DELIVERED at NAIROBI this 27th day of JANUARY 2023.
D. S. MAJANJA
JUDGE