1.After making a ruling in the morning, I started settling the issues in this matter. I noted that there is a suit between the plaintiff and third plaintiff filed in ELC No. E 003 OF 2021.
2.The statutory power of sale has already been exercised. The plaintiff amended the plaint. The subject matter, being Mombasa/block XV/47(Go down NO.1) has been sold and transferred to the 3rd Defendant. There is no dispute over the securities.
3.The orders sought are: -a.An injunction restraining transfer of the suit land.b.Declaration that the sale was premature and contrary to orders given in Mombasa high court cc no E 011 OF 2022.c.Transfer To the 3rd defendant of the suit land was illegal, null and void.d.Cancellation of title and reverting to the Plaintiff.
4.There is a challenge over the said title in the ELC court. Exercise of the statutory power of sale, the dispute reverted to be a land matter. The dispute is thus over number Mombasa block XV go down No. 1, which is in the name of the 3rd defendant. Regarding prayers related to HCCC E 011 of 2020, those are disputes on obeying orders or execution of those orders. Under section 34 of the Civil Procedure Rules, this court cannot engage in orders being handled in another matter. The section provides as doth: -
5.Therefore, this court cannot handle prayer b of the amended plaint. The remainder of the payers are land court matters. This is because the sale had already taken place through the exercise of the statutory power of sale. The plaintiff and the 3rd defendant are dueling in ELC over possession.
6.The orders sought herein are not related to securities. A dispute over land should be dealt with in a different court under Article 162(2) of the constitution. As held in held in the case of in Mohamed Ali Baadi and others v Attorney General & 11 others  eKLR, the court stated as doth: -
7.The court continued that in cases of maze issues or denial of rights, then the high court has jurisdiction as well as the courts of equal status, the court stated: -
8.In Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another  eKLR,
9.Jurisdiction is the authority to decide therefore, where the Court has jurisdiction it must take, jurisdiction while where it has no jurisdiction it must down its tools. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd  eKLR, Nyarangi, JA (as then he was) stated as doth: -
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  eKLR, the supreme court posited as doth: -
11.In Re-Interim Election Commission Petition No. 2 of 2011, the Supreme Court rendered itself as doth: -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  KLR 1, which bears the following passage (Nyarangi, JA at p.14):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.The supreme court succinctly continued to require, nay demand that the constitution be interpreted in Manner that promotes the rule of law and holistic interpretation of the constitution. In the case of in the Matter of Interim Independent Electoral Commission  eKLR. The supreme court posited as doth: -In common with other final Courts in The Commonwealth, Kenya’s Supreme Court is not bound by its decisions, even though we must remain alive to the need for certainty in the law. The rules of constitutional interpretation do not favour formalistic or positivistic approaches (Articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human-rights based, and social-justice oriented State and society. The values and principles articulated in the Preamble, in Article 10, in Chapter 6, and in various other provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the Courts.
13.In S.K Macharia V KCB, the Supreme Court, the Court was particular that there must be jurisdiction and the same cannot be conferred by consent by connivance or by craft. The Court was precise and held as doth: -
14.On the other hand, also the Court cannot by sheer laziness or dislike for a file divest itself of jurisdiction that it has. In support of that contention, Justice Nyarangi quoted in Motor Vessel,1989eKLR Lilian S. Justice Nyarangi JA laid with approval words and phrases legally defined – Vol 3: I to N page 113.
15.There is no mixed question to be dealt with. Even if there is, there is already a suit in the land court. Transferring this suit there will create issues of subjudice. If there are issues that are raised, they should be raised in that suit field in the ELC Court, because the predominant question is land.
16.Article 165(5) of the constitution give the jurisdiction of the high court as doth: -
17.Article 165(5) of the Constitution, referred, restricts the jurisdiction of the high court as doth: -5.The High Court shall not have jurisdiction in respect of mattersa.reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; orb.falling within the jurisdiction of the courts contemplated in Article 162 (2).
18.This is but raised by article 162 of the constitution which provides as follows: -
19.Jurisdiction is everything. The court either has or doesn’t have jurisdiction. In the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd  eKLR, justice Nyarangi, JA as then he was stated as doth:
20.There can be no two ways in this matter the matter. The matters raised in the amended plaint dated 20th March 2022 are purely land issues. There is no issue of the predominance question and there is no commercial issue raised.
21.In the circumstances the suit is unsustainable in this court. luckily for the plaintiff he has another suit which you can raise all those impugned issues. the order sought are the domain of Section 13 of the environmental and Court Act, which provides as follows: -
22.There will be no utility served in transferring the suit from a court without jurisdiction and when there is already a matter seeking similar orders and over the same subject matter.
23.There would be more useful use of judicial time than dealing with matters that have already been dealt with by other judicial officers over the same issue.
24.Consequently, this suit is begging and I do allow that it be struck out.
Determinationa.The plaintiff’s suit is consequently struck out with costs of Ksh 250,000/= to the 3rd Defendantb.First and 2nd defendants to bear their own costs.c.The file is closed.