The exparte applicant was granted leave on the 16th August 2023 to institute Judical Review proceedings and seek an order of prohibition restraining the respondents from instituting criminal proceedings against the exparte applicant. The grounds of the application are that the dispute between him and Haron Kiboiwo Mwoliot revolves on sale of land but the respondents are being used by the interested party to harass him by locking him at the police statins without a charge. That no offence has been established under the penal code and that the respondent are abusing the Criminal justice system.
This court has considered the pleadings and evidence on record and do find that the dispute before it is not a land dispute but a dispute on the exercise of Administrative Power by the Director of Public Prosecution. Article 162 (2) b of the constitution of Kenya provides that parliament shall 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.
Section 13 (1) of the Environment and Land Court Act gives the court original and appellate jurisdiction to hear and determine all disputes relating to environment and land. Such disputes are provided in Section 13 (2) of the ELC Act and what is set out thereon are not conclusive and therefore the court can hear any other dispute relating to the environment and land. Section 13 (7)(b) provides that this court shall have power to make any order and grant any relief as the court deems fit and just, including prerogative orders. Though the matter herein is an application for judicial Review orders, it does not arise from a dispute over land and therefore does not fall within the purview of Article 162(2)(b) of the constitution and the Environment and Land Court Act.
otor Vessel “Lilian S” – Versus - Caltex Oil (Kenya) Limited (1989) IKLR dealt with a court, jurisdiction thus:-
“Jurisdiction is everything. Without it, a court has no powers to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion it is without jurisdiction…………where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before Judgement is given”.
16. Additionally, still on the same point, in the case of “County Government of Migori – Versus - I N B Management IT Consultant Limited ( 2019) eKLR” whereby court being faced with an objection regarding jurisdiction, analyzed the law and observed as follows:-
“10- The jurisdiction point raised by the Respondent herein clearly meets the foregone criteria being a pure point of law. That jurisdiction is everything is a well settled principle in law. My Lordship Ibrahim, JSC in Supreme court of Kenya Civil application No 11 of 2016-“Hon (Lady ) Justice Kalpana H Rawal Versus Judicial Service Commission and others when in demystifying jurisdiction quoted from the decision in Supreme court of Nigeria supreme case No 11 of 2012- “Ocheja Immanuel Dangama – Versus - Hon. Atoi Aidoko Aliaswan and 4 others where Walter Samuel Nkanu Onnoghen, JSC and expressed himself as follows;-
“.....it is settled that jurisdiction is the life blood of any adjudication because a court or tribunal without jurisdiction is like an animal without blood, which means it is dead. A decision by a court or tribunal without requisite jurisdiction is a nullity deed on arrival and of no legal effect whatever that is why an issue of jurisdiction is granted and fundamental in adjudication and has to be dealt with first and foremost.....”
The applicant for judicial review does not revolve on a land dispute, thus the use and occupation of, and title to, land but on abuse of Administrative power. I do find that I have no jurisdiction to entertain the dispute. I do transfer the case to the High Cour of Kenya at Nakuru.
Ruling dated signed and delivered electronically at Nakuru this 26th day of September 2024.
This court has considered the pleadings and evidence on record and do find that the dispute before it is not a land dispute but a dispute on the exercise of Administrative Power by the Director of Public Prosecution. Article 162 (2) b of the constitution of Kenya provides that parliament shall 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.
Section 13 (1) of the Environment and Land Court Act gives the court original and appellate jurisdiction to hear and determine all disputes relating to environment and land. Such disputes are provided in Section 13 (2) of the ELC Act and what is set out thereon are not conclusive and therefore the court can hear any other dispute relating to the environment and land. Section 13 (7)(b) provides that this court shall have power to make any order and grant any relief as the court deems fit and just, including prerogative orders. Though the matter herein is an application for judicial Review orders, it does not arise from a dispute over land and therefore does not fall within the purview of Article 162(2)(b) of the constitution and the Environment and Land Court Act.
otor Vessel “Lilian S” – Versus - Caltex Oil (Kenya) Limited (1989) IKLR dealt with a court, jurisdiction thus:-
“Jurisdiction is everything. Without it, a court has no powers to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion it is without jurisdiction…………where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before Judgement is given”.
16. Additionally, still on the same point, in the case of “County Government of Migori – Versus - I N B Management IT Consultant Limited ( 2019) eKLR” whereby court being faced with an objection regarding jurisdiction, analyzed the law and observed as follows:-
“10- The jurisdiction point raised by the Respondent herein clearly meets the foregone criteria being a pure point of law. That jurisdiction is everything is a well settled principle in law. My Lordship Ibrahim, JSC in Supreme court of Kenya Civil application No 11 of 2016-“Hon (Lady ) Justice Kalpana H Rawal Versus Judicial Service Commission and others when in demystifying jurisdiction quoted from the decision in Supreme court of Nigeria supreme case No 11 of 2012- “Ocheja Immanuel Dangama – Versus - Hon. Atoi Aidoko Aliaswan and 4 others where Walter Samuel Nkanu Onnoghen, JSC and expressed himself as follows;-
“.....it is settled that jurisdiction is the life blood of any adjudication because a court or tribunal without jurisdiction is like an animal without blood, which means it is dead. A decision by a court or tribunal without requisite jurisdiction is a nullity deed on arrival and of no legal effect whatever that is why an issue of jurisdiction is granted and fundamental in adjudication and has to be dealt with first and foremost.....”
The applicant for judicial review does not revolve on a land dispute, thus the use and occupation of, and title to, land but on abuse of Administrative power. I do find that I have no jurisdiction to entertain the dispute. I do transfer the case to the High Cour of Kenya at Nakuru.
Ruling dated signed and delivered electronically at Nakuru this 26th day of September 2024.