REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CIVIL CASE NO.2 OF 2020

1. SONYACO HOUSING COOPERATIVE SOCIETY LTD..........1^ST  PLAINTIFF

2. JAIRUS ONYANGO CHAIRMAN, SONYACO                                                        

HOUSING COOPERATIVE SOCIETY)...........................................2^ND PLAINTIFF

3. OCTAVIAN UHURU KONUNDA (SECRETARY,                                                    

SONYACO HOUSING COOPERATIVE SOCIETY LTD).............3^RD PLAINTIFF

4. BEN H. OTIENO (TREASURER, SONYACO                                                          

HOUSING COOPERATIVE SOCIETY LTD)..................................4^TH PLAINTIFF

VERSUS

1. SOUTH NYANZA TEACHERS COOPERATIVE                                                       

SAVINGS & CREDIT SOCIETY)....................................................1^ST  DEFENDANT

2. ROSECHEUS ONYANGO OTETE (CHAIRMAN,                                                    

   SOUTH NYANZA TEACHERS SAVINGS &                                                                      

CREDIT COOPERATIVE SOCIETY LTD)....................................2^ND DEFENDANT

  3. CATHERINE KAUNDA) SECRETARY,                                                                         

SOUTH NYANZA TEACHERS COOPERATIVE                                                            

SAVINGS & CREDIT SOCIETY)......................................................3^RD DEFENDANT

4. MAURICE SAKO (TREASURER, SOUTH                                                                  

  NYANZA TEACHERS COOPERATIVE                                                                             

SAVINGS & CREDIT SOCIETY).......................................................4^TH DEFENDANT

JUDGMENT

[1] The four plaintiffs constituting Sonyaco Housing Co-operative Society, and three of its officials viz:- Jairus Onyango, Octavian Uhuru Konunda and Ben H. Otieno, Chairman, Secretary and Treasurer respectively of the society brought this action against the four defendants, consisting South Nyanza Teachers Co-op Savings & Credit Society Ltd and its three officials , Rosecheus Onyango Otete(Chairman), Catherine Kaunda (Secretary) and Maurice Sako (Treasurer), praying for  declaratory and injunctive orders to the effect that there be a declaration that a building known as Sonyako Plaza belongs and is owned by the first plaintiff and all rents accruing there from, be paid to the first plaintiff by the tenants occupying the building and that the defendants jointly and severally be compelled to pay to the plaintiffs all rents illegally collected from the tenants from the month of January 2012 to date.

The plaintiff further pray for an order of permanent injunction to issue against the defendants, their agents, servants, employees, members and/or any person deriving authority from them restraining them from further collecting rents from the tenants of the building and that there be an orderly eviction from the building against the defendants.

[2] The statement of claim (plaint) dated 3^rd June 2020, was filed herein on 4^th June 2020 contemporaneously with a Notice  of Motion essentially seeking a temporary injunction order against the defendants to restrain them from further collecting rents from the tenants of Sonyaco plaza building pending hearing and determination of this suit.  The ground, in support of the application are set out in the notice of motion and fortified by the averments contained in the supporting affidavit deponed by the fourth defendant on 3^rd June 2020.

The defendants oppose the application on the basis of the grounds contained in their replying affidavit filed herein on 9^th October, 2020, which is undated and was signed by the deponent thereby rendering it ineffective for the purpose of defending this motion.

[3] Nonetheless, the burden to establish whether an interim injunction order should issue against the defendants lay with the plaintiffs.  In that regard they were required to establish by necessary evidence and fact any of the principles applicable for grant of a  temporary injunction set out in the evergreen case of Girella Vs Cossman Brown and Co. Ltd(1973)EA 358, to wit:-

i) An application must establish a “prima facie” case with probability of success;

ii) An applicant must establish that he stands to suffer irreparable loss which cannot be adequately compensated by an award of damages if an injunction is not granted;

iii) If in doubt the court would determine the matter on a balance of convenience.

[4] From the applicants/plaintiffs pleadings, supporting grounds and submissions, it is clearly evident that the dispute between them and the defendants revolves around the ownership of a building in Homa-Bay Town known as Sonyaco Plaza erected on Land Parcel No.1432/556 measuring 0.4032Ha.  Indeed the ownership of the said building and invariably the parcel of land on which it stands is what gave rise to this cause of action and actually forms the substratum of the entire dispute.

This being the position, the question of this court’s jurisdiction to deal with the dispute invariably comes to the fore and was indeed, raised by the defendants in their paragraph 14 of the statement of defence dated 29^th September 2020 filed herein on 9^th October 2020 and also in their written submissions dated 21^st October 2020 and filed on the same date in opposition to this application.

[5] So, if this court were to venture to the determination of the application at hand and indeed, the main suit which gives rise to the application, the issue of jurisdiction must first be settled.

In the treatise “words and phrases legally defined Vol 3” by John Beecroft Saveders, jurisdiction is defined in the following terms:-

“By jurisdiction is meant the authority which a court has to

decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision.  The limits of this authority are impugned by the statute, charter or commission under which the court is constituted, and may be extended or restricted by 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 cognizance or as to the area which the jurisdiction shall extend, or it may partake these characteristics ………. Where a court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.

Jurisdiction must be acquired before judgment is given”.

[6] Clearly, jurisdiction goes to the root of any litigation.  The “locus classicus” decision on this issue was that which was rendered by the court of Appeal in the case of Owners of H/V Lilian “S” Vs Caltex Oil Kenya Ltd(1989)KLR1 where it was held that jurisdiction is everything and without it a court cannot make a move.  It has to down its tools the  moment it finds that it lacks jurisdiction to deal with the matter.

As noted hereinabove, the nature of this action or the cause of action relates to an interest in land i.e ownership of the land on which Sonyaco Plaza building is erected.

In adopting the decision in the M/V Lilian “S” case(Supra), the Supreme Court of Kenya in the IEBC Admisory opinion stated that:-

“Where the constitution exhaustively provides for the jurisdiction of a court of Law, the court must operate within the constitutional limits.  It cannot expand its jurisdiction through judicial craft or innovation. Nor can parliament confer jurisdiction upon a court of Law beyond the scope defined by the constitution.  Where the constitution confers power upon parliament to set the jurisdiction of the court of Law or Tribunal the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute Law”.

[7] Indeed, the statute law governing matters relating to ownership of land is the Environment and Land Court Act, which was enacted pursuant to Article 162(3) of the Constitution  Section 13(1) of the Act outlines the jurisdiction of the Environment and Land Court (ELC) as follows:-

“(2) – In the exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the court shall have power to hear and determine the dispute;

(a) Relating to Environment planning and Protection, Climate issues, land use, planning, title, tenure, countries, rates, rents, valuations, mining, mineral and other material resources;

(b) Relating to compulsory acquisition of lands;

(c)Relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interest in land and any other dispute relating to environment and land.

[8] The Environment and Land Court is a special court of equal status with the High Court.  In the case of Republic Vs Ketsao Charo Ngali  Supreme Court Petition No.5 of 2015 (2017)eKLR, the Supreme Court stated that “Status denotes hierarchy with jurisdiction covers the sphere of the court’s operation.  Courts can therefore be of the same status but exercise different jurisdiction.

Article 165(5) of the constitution precludes the High Court from dealing with matters reserved to the Environment and Land Court.  This case is one such matter for both the present application and the suit in general.  Consequently, the court would have no jurisdiction to deal with this matter in any way and hereby sustains the respondent/defendants objection in that regard.

The present application together with the main suit are therefore dismissed with costs to the respondent/defendant for want of jurisdiction.

Ordered accordingly.

[Delivered and signed this 1^st  day of December, 2020]

J.R. KARANJAH

JUDGE