Ruling
1. THIS MATTER coming up on 23rd day of June 2023 for directions on the Notice of Motion dated 21/6/2023 before under a certificate of urgency dated 19/6/2023, in the absence of both advocates, in chambers upon perusing the application, I have opted to issue a ruling as opposed to an exparte order.
2. These matters ever ceased to come to this court. We shall also not tire to strike them out.
3. The applications can only be dealt with by a court with requisite jurisdiction. Appeal from the business premises rent tribunal have since settled in the environment and land court.
4. Section 13 of the Environment and Land Court Act, the jurisdiction of that court is given as: -
(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 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.
5. The dispute under the said tribunal is appealable to that court. The locus classicus Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, especially the decision of Nyarangi JA as then he was with kind concurrency of his brothers, Masime and Kwach JJA stated s doth: -
“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. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:
“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”
6. What is real means is that without jurisdiction, proceedings thereafter are a nullity. The application is in a wrong court. As stated by Lord Denning MR IN Macfoy vs United Africa Company [1961] 3 All ER 1169:
“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to setting aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so.”
7. In Republic V Business Premises Rent Tribunal & Another Ex- Parte Albert Kigera Karume [2015] eKLR cited with approval the case of Re Hebtulla Properties Ltd. [1979] KLR 96; [1976-80] 1 KLR 1195 where the Court dealt with the provisions of section 12 of Cap 301 as follows:
“The tribunal is a creature of statute and derives its powers from the statute that creates it. Its jurisdiction being limited by statute it can only do those things, which the statute has empowered it to do since its powers are expressed and cannot be implied…. …. The powers of the tribunal are contained in section 12(1) of the Act and anything not spelled out to be done by the tribunal is outside its area of jurisdiction. It has no jurisdiction except for the additional matters listed under section 12(1)(a) to (n). The Act was passed so as to protect tenants of certain premises from eviction and exploitation by the landlords and with that in mind the area of jurisdiction of the tribunal is to hear and determine references made to it under section 6 of the Act. Section 9 of the Act does not give any powers to the tribunal, but merely states what the tribunal may do within its area of jurisdiction……
8. Even the same appies to appeals. The parties cannot creat or confer jurisdiction on the court. In the case of Samuel Kamau Macharia & Another –vs- Kenya Commercial Bank Ltd & 2 Others (2012) eKLR it was held that : -
“A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by the law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.”
9. In Mohamed Ali Baadi and others v Attorney General & 11 others[2018] eKLR, the court stated as doth: -
100. The Supreme Court in Republic vs Karisa Chengo & 2 Others[47] amplified and pertinently held that each of the Superior Courts established by or under the Constitution has jurisdiction only over matters exclusively reserved to it by the Constitution or by a statute as permitted by the Constitution. The holding in this case however, does not resolve the knotted question of which court among the High Court and the two equal status Courts under Article 162(2)(b) should be seized of jurisdiction in controversies in hybrid cases. Hybrid cases are cases where issues cut across the exclusive jurisdiction reserved for each of the three courts. As demonstrated by the issues identified above, this is one such hybrid case
10. The Supreme Court has had an opportunity in numerous occasions and it has never squandered such to clarify the extent of jurisdiction of this Court and Courts of equal status. In Republic v Karisa Chengo & 2 others [2017] eKLR, the supreme court posited as doth: -
“79] It follows from the above analysis that, although the High Court and the specialized Courts are of the same status, as stated, they are different Courts. It also follows that the Judges appointed to those Courts exercise varying jurisdictions, depending upon the particular Courts to which they were appointed. From a reading of the statutes regulating the specialized Courts, it is a logical inference, in our view, that their jurisdictions are
limited to the matters provided for in those statutes. Such an inference is reinforced by and flows from Article 165(5) of the Constitution, which prohibits the High Court from exercising jurisdiction in respect of matters “reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or (b) falling within the jurisdiction of the Courts contemplated in Article 162(2).”
11. In Re-Interim Election Commission Petition No. 2 of 2011, the Supreme Court rendered itself as doth: -
[29] Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):
“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.”
[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.
12. Alice Mweru Ngai v Kenya Power & Lighting Co. Ltd [2015] eKLR the court relied on the case of Joseph Njuguna Mwaura & others VS Republic C.A Criminal Appeal NO. 5 of 2008 (NBI) where it was stated as follows:-
“This position was emphasized in Karisa Chengo, Jefferson Kalama, Kengha & Kitiso Charo Ngati vs. Republic (2015)Eklr where the court of appeal held: -
The jurisdiction of the High Court is limited, it cannot exercise jurisdiction on matters falling within the jurisdiction of the two courts contemplated in Article 162(2). Therefore, the High Court no longer has original and unlimited jurisdiction in all matters as it used to have under the repelled Constitution. It cannot deal with matters set out under Section 12 of the ELRC and section 1 of the ELC Act. Conversely, the ELRC and ELC cannot deal with matters reserved for the High Court.”
13. I have said enough to show that, however urgent this matter is, I have no jurisdiction over it. The same is a nullity. Consequent upon the foregoing, the proceedings commenced in this manner are null and void.
14. I therefore save the application from the ignominy of its own incompetence.
15. I strike out the entire application and order the file closed.
DELIVERED, DATED and SIGNED at MOMBASA on this 23rd day of June 2023 via the efiling portal.
1. THIS MATTER coming up on 23rd day of June 2023 for directions on the Notice of Motion dated 21/6/2023 before under a certificate of urgency dated 19/6/2023, in the absence of both advocates, in chambers upon perusing the application, I have opted to issue a ruling as opposed to an exparte order.
2. These matters ever ceased to come to this court. We shall also not tire to strike them out.
3. The applications can only be dealt with by a court with requisite jurisdiction. Appeal from the business premises rent tribunal have since settled in the environment and land court.
4. Section 13 of the Environment and Land Court Act, the jurisdiction of that court is given as: -
(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 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.
5. The dispute under the said tribunal is appealable to that court. The locus classicus Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, especially the decision of Nyarangi JA as then he was with kind concurrency of his brothers, Masime and Kwach JJA stated s doth: -
“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. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:
“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”
6. What is real means is that without jurisdiction, proceedings thereafter are a nullity. The application is in a wrong court. As stated by Lord Denning MR IN Macfoy vs United Africa Company [1961] 3 All ER 1169:
“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to setting aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so.”
7. In Republic V Business Premises Rent Tribunal & Another Ex- Parte Albert Kigera Karume [2015] eKLR cited with approval the case of Re Hebtulla Properties Ltd. [1979] KLR 96; [1976-80] 1 KLR 1195 where the Court dealt with the provisions of section 12 of Cap 301 as follows:
“The tribunal is a creature of statute and derives its powers from the statute that creates it. Its jurisdiction being limited by statute it can only do those things, which the statute has empowered it to do since its powers are expressed and cannot be implied…. …. The powers of the tribunal are contained in section 12(1) of the Act and anything not spelled out to be done by the tribunal is outside its area of jurisdiction. It has no jurisdiction except for the additional matters listed under section 12(1)(a) to (n). The Act was passed so as to protect tenants of certain premises from eviction and exploitation by the landlords and with that in mind the area of jurisdiction of the tribunal is to hear and determine references made to it under section 6 of the Act. Section 9 of the Act does not give any powers to the tribunal, but merely states what the tribunal may do within its area of jurisdiction……
8. Even the same appies to appeals. The parties cannot creat or confer jurisdiction on the court. In the case of Samuel Kamau Macharia & Another –vs- Kenya Commercial Bank Ltd & 2 Others (2012) eKLR it was held that : -
“A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by the law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.”
9. In Mohamed Ali Baadi and others v Attorney General & 11 others[2018] eKLR, the court stated as doth: -
100. The Supreme Court in Republic vs Karisa Chengo & 2 Others[47] amplified and pertinently held that each of the Superior Courts established by or under the Constitution has jurisdiction only over matters exclusively reserved to it by the Constitution or by a statute as permitted by the Constitution. The holding in this case however, does not resolve the knotted question of which court among the High Court and the two equal status Courts under Article 162(2)(b) should be seized of jurisdiction in controversies in hybrid cases. Hybrid cases are cases where issues cut across the exclusive jurisdiction reserved for each of the three courts. As demonstrated by the issues identified above, this is one such hybrid case
10. The Supreme Court has had an opportunity in numerous occasions and it has never squandered such to clarify the extent of jurisdiction of this Court and Courts of equal status. In Republic v Karisa Chengo & 2 others [2017] eKLR, the supreme court posited as doth: -
“79] It follows from the above analysis that, although the High Court and the specialized Courts are of the same status, as stated, they are different Courts. It also follows that the Judges appointed to those Courts exercise varying jurisdictions, depending upon the particular Courts to which they were appointed. From a reading of the statutes regulating the specialized Courts, it is a logical inference, in our view, that their jurisdictions are
limited to the matters provided for in those statutes. Such an inference is reinforced by and flows from Article 165(5) of the Constitution, which prohibits the High Court from exercising jurisdiction in respect of matters “reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or (b) falling within the jurisdiction of the Courts contemplated in Article 162(2).”
11. In Re-Interim Election Commission Petition No. 2 of 2011, the Supreme Court rendered itself as doth: -
[29] Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):
“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.”
[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.
12. Alice Mweru Ngai v Kenya Power & Lighting Co. Ltd [2015] eKLR the court relied on the case of Joseph Njuguna Mwaura & others VS Republic C.A Criminal Appeal NO. 5 of 2008 (NBI) where it was stated as follows:-
“This position was emphasized in Karisa Chengo, Jefferson Kalama, Kengha & Kitiso Charo Ngati vs. Republic (2015)Eklr where the court of appeal held: -
The jurisdiction of the High Court is limited, it cannot exercise jurisdiction on matters falling within the jurisdiction of the two courts contemplated in Article 162(2). Therefore, the High Court no longer has original and unlimited jurisdiction in all matters as it used to have under the repelled Constitution. It cannot deal with matters set out under Section 12 of the ELRC and section 1 of the ELC Act. Conversely, the ELRC and ELC cannot deal with matters reserved for the High Court.”
13. I have said enough to show that, however urgent this matter is, I have no jurisdiction over it. The same is a nullity. Consequent upon the foregoing, the proceedings commenced in this manner are null and void.
14. I therefore save the application from the ignominy of its own incompetence.
15. I strike out the entire application and order the file closed.
DELIVERED, DATED and SIGNED at MOMBASA on this 23rd day of June 2023 via the efiling portal.