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Ndiritu v Ngarange (Civil Suit 7 of 2018) [2023] KEHC 21651 (KLR) (1 August 2023) (Ruling)
Neutral citation:
[2023] KEHC 21651 (KLR)
Republic of Kenya
Civil Suit 7 of 2018
DO Chepkwony, J
August 1, 2023
Between
Lydia Njoki Ndiritu
Applicant
and
Moses Kinyanjui Ngarange
Respondent
Ruling
1.This Ruling is to determine the Notice of Motion Application dated 10th March, 2022. The application seeks the following orders:a.Spent.b.That the Honourable court be pleased to issue an order compelling the Land Registrar Ruiru-Land Registry to remove the caution lodged on land parcel no. Ruiru/Kiu Block 1/415 by Lydia Njoiki Ndirit.c.That costs of this application be borne by the Applicant.
2.The application is supported by the grounds set out on its face and reiterated in the Supporting Affidavit of Moses Kinyanjui Ngarange, the Applicant wherein the Applicant states that the subject land is registered in his name and that the Respondent lodged the caution on the pretext that she was his wife. According to the Applicant, the Respondent had instituted a suit against him which was heard and determined in his favour and thereafter she moved out of the premises a the subject land.
3.He states that since no appeal has been lodged against the decision, the court should order for the removal of the caution to enable him exercise his constitutional right to quiet possession, land use and for him to safeguard his rights.
4.The Applicant sought and obtained court’s leave to file a further Affidavit which is sworn on 20th July, 2022 clarifying that the subject land is not Ruiru/KIU Block1/415 as stated in his application but Ruiru/KIU Block 15/170 for which he seeks removal of caution.
5.Both the Application and the Further Affidavit were served upon the Respondent herein and the respective Affidavits of service were filed in court. However, the Respondent has not filed any response to the application.
6.Be that as it may, even though the Respondent has not filed any response to the Application, the court is still called upon to determine the application based on its merits.
Analysis and Determination.
7.From the onset, it is important to establish whether the court has jurisdiction to deal with the application as a first port of call because without jurisdiction the court cannot move a step further but down its tools. This was the court’s decision in the classicus case of Owners of the Motor Vessel “Lillian S” –vs- Caltex Oil (Kenya) Ltd (1989) KLR 1 where the Court stated that: -
8.It is trite law that jurisdiction of the court flows from either the Constitution or a statute or both. This was the decision of the Supreme Court of Kenya in the case of Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Ltd & 2 Others, Application No. 2 of 2011, where it pronounced that:
9.On the face of the application, the subject matter is the removal of a caution from the land parcel No.Ruiru/Kiu Block 1/415 by one Lydia Njoki. Clearly, this is a matter relating to land which falls under the purview of the Land and Environment Court that is established under Article 162 of the Constitution and not this court as the High Court.
10.Article 165(2) of the Constitution provides that the High Court shall not have jurisdiction to deal with matters within the jurisdiction of the Environment and Land Court and the Employment Labour Relations Court.
11.All disputes relating to the Environment and Land are only dealt with by the Environment and Land Court as provided for under Section 13 (2) (e) of the Environment and Land Court Act which outlines the jurisdiction of the Environment and Land Courts as follows: -(1)…(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)…b)…c)…;d)…e)Any other dispute relating to environment and land.
12.Having established that this court does not have jurisdiction to handle the application, herein, it also does not have jurisdiction to transfer the case to the environment and land court. This was the position in the case of Wamathu Gichoya v Mary Wainoi Magu [2015] eKLR where the Court held that: -
13.In the circumstances, this court finds that the application dated 10th March, 2022 has to be dismissed for want of jurisdiction with no orders as to cost.
It is so ordered.
RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 1ST DAY OF AUGUST , 2023.D. O. CHEPKWONYJUDGEIn the presence of:M/S Giteru holding brief for Mr. Gitau for ApplicantCourt Assistant - Nancy
