1.The plaintiff filed suit against the defendant on August 14, 2021 the same claiming damages given in HCC 202 of 2004. This said suit was dismissed on February 4, 2021 for want of prosecution. The earlier suit had been filed before the new constitution came into being.
2.The applicant made an application dated October 26, 2022 praying for;a.That this honourable court be pleased to order to be struck out paragraphs 4,5,6,9,11,12and 13 of the defendant’s defence;b.That in the alternative this honourable court be pleased to order that the defendants defence be amended so as to remove the above-mentioned impugned paragraphs 4,56,9,11,12, and 13 of the said defencec.That the costs of this application n be proved for.
4.There are two aspects of jurisdiction that I need to address. The first one is the issue of enforcement of an undertaking while giving an injunction in a suit. The second one is the material jurisdiction or the so-called subject matter jurisdiction, that is jurisdiction ratione materiae.
5.We start with the first. The undertaking was given in a suit. The suit in that case being HCC 202 of 2004. The Case herein related to enforcement of an undertaking arises from an order of injunction given in the former suit. Section 34 of the Civil Procedure Rules proves as follows;
7.Therefore, if there is an undertaking to enforce the same should be done or should have been done in the former suit. The court in that suit should be satisfied that the undertaking was discharged.
8.Secondly, the claim is in relation to land parcel No Mombasa Block XIV/84. Article 165(5) of the constitution provides as follows: -
9.Article 162 (2) of the constitution provides as follows; -
10.In the plaint, filed herein, the plaintiff is seeking damages arising from an injunction against construction and use over land parcel No Mombasa Block XIV/84 measuring 1.125 acres devised to the plaintiff.
11.The matters in issue fall within the provision of Section 13 of the Environment and Land Court Act. Section 13 (2) of the said act states as doth: -
12.The said court has jurisdiction under Section 13(7) of the Environment and Land Court Act to award: -(a)interim or permanent preservation orders including injunctions;(b)prerogative orders;(c)award of damages;(d)compensation;(e)specific performance;(g)restitution;(h)declaration; or(i)costs.
14.This court cannot handle matters in the courts of equal status. This is directly forbidden by the constitution. I cannot arrogate myself power not allocated to me. In Republic v Karisa Chengo & 2 others  eKLR, the supreme court posited as doth: -
15.This is reiterated in an earlier case where the supreme court decided on the issue of jurisdiction. In Re-Interim Election Commission Petition No 2 of 2011, the Supreme Court rendered itself as doth: -
17.The defence filed a Preliminary Objection raising 3 questions but I think on 2 are sufficient. Objection c and d have merit. However, I need not address them.
18.From the totality of the forgoing I am satisfied of the claim herein can only be raised in the former suit and in the land court. Having been made in a court without jurisdiction. I do not need to address the applicant dated October 26, 2022.
19.I do not find any predominant matters. All the issues raised relate to land matters. The issue of undertaking was given in a specific case. It cannot be transferred. The only order commending itself is that the entire suit is filed in a court without jurisdiction. I have not power to transfer the same.
21.This court lacks jurisdiction to entertain the claim the court having no power to transfer a case filed in a court without jurisdiction. The entire suit together with the application dated October 26, 2023 are struck out in limine. Costs to the defendant.
22.The file is closed.