CORAM: Hon. Justice A.K.Ndung’uMr Tindika for the AppellantMs Musyoki for the Respondent
1.At the trial court, the Appellant by way of a Notice of Motion dated October 26, 2020, sought Orders from the trial Court that the Court be pleased to set aside and/or vacate the order/or ruling made on October 8, 2019 dismissing the then Plaintiff’s suit on grounds of want of prosecution and all the consequential orders and/or steps taken thereupon be vacated in their entirety.
2.The record shows that the said application was opposed by the Defendant/Respondent vide a replying affidavit sworn by himself on January 7, 2021.
3.The matter was canvassed by way of written submissions and in a ruling dated March 2, 2021 the application was dismissed with costs to the Defendant.
4.Aggrieved by the said ruling, the Appellant has lodged this appeal against the ruling/ order of the trial court raising 8 grounds namely; -
5.The appeal was canvassed by way of written submissions.
6.This being a first appeal my duty is well set out as laid down in Selle and Another V Associated Motor Boat Company Limited and Others (1968) EA 123, where the Court stated; -
7.In a nutshell, the subject application before the trial court sought the setting aside of a dismissal order dated October 8, 2019 in respect of Civil Suit No 11 of 2015 at the Mariakani Magistrate’s court, an order obtained by Defendant (Respondent herein) vide their application to court dated June 21, 2019.
8.It has been contended by the Appellant (then Plaintiff) that the Notice of Motion dated June 21, 2019 was never served on them. The alleged service is challenged on the basis that a chief is not authorized to effect service and in any event no document was ever received from the chief. It is urged that the law requires a party to be served before adverse steps are taken against them, thus the Appellant was greatly prejudiced by the orders issued.
9.The Respondent contended at the trial court that the Appellant was served by a licensed process server by the name Michael Muthika William as seen in his affidavit sworn on July 20, 2019 where it is indicated that service was effected on July 12, 2019. It is urged that the Appellant did not meet the legal threshold for setting aside of the Court’s Orders.
10.I have considered the factual material laid before the trial court and re-evaluated it. In the course of so doing, I have noted an aspect of this appeal that has not been raised nor addressed by any of the parties, a strange occurrence given that the same touches on the jurisdiction of this court.
11.The Appellant approached the trial court vide a Plaint dated January 29, 2015 and filed on the same date. A cursory look at the Plaint shows clearly that this is a claim over ownership of land. It revolves around ownership of some unsurveyed ancestral parcel of land measuring approximately five acres which formerly belonged to the Appellant’s grandfather, the late Samuel Kadzoyo Nyamu.
12.By dint of Article 162 2 (b) and the provisions in the Environment and Land Court Act, the dispute herein falls within the jurisdiction of the Environment and Land Court.
16.It flows from the foregoing that this Court has no jurisdiction to entertain this Appeal. The same was filed in the improper Court and this Court cannot move a step further in the matter and neither is it conferred with jurisdiction to transfer a matter in which, ab initio, it had no jurisdiction.
17.Consequently, the Appeal herein is struck out for want of jurisdiction.