Lawrence Musango Oketch & 2 others v Karen Enterprises Limited [2019] KECA 737 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that land disputes can only be heard by the Environment and Land Court, and any High Court judgment on land is void.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court had jurisdiction to hear and determine a land dispute after the Constitution, 2010 and the Environment and Land Court Act came into force, notwithstanding that the suit was filed in 2005 and was part-heard
- 2.Whether practice directions issued by the Chief Justice could confer jurisdiction on the High Court
- 3.Whether the consent of, or participation by, the parties could cure the want of jurisdiction
Key legal issues
#Jurisdiction of the High Court in land matters post-Constitution 2010
The High Court lacked jurisdiction; Article 165(5)(b) expressly excludes matters within the jurisdiction of courts established under Article 162(2), including land disputes assigned to the Environment and Land Court
Article 162(2)(b) required Parliament to establish superior courts of equal status to hear and determine land and environment disputes. Parliament enacted the Environment and Land Court Act, whose section 13(1) confers original jurisdiction over all such disputes. Article 165(5)(b) expressly ousts the High Court's jurisdiction over these matters. Once the Environment and Land Court became operational, disputes of this nature could only be heard by it, and the High Court's continued hearing was without legal foundation.
Effect of transitional provision (section 30 of the Environment and Land Court Act) and practice directions
Section 30 allowed pending and part-heard matters to continue only until the Environment and Land Court came into operation; practice directions could not extend the High Court's jurisdiction beyond that point
The transitional clause permitted continued hearing of pending matters only pending operationalisation of the Environment and Land Court or as directed by the Chief Justice or Chief Registrar. The Chief Justice's direction power allowed interim management of the hiatus, such as holding cases in abeyance, but once the specialized court was operational his role ended. Practice directions, being administrative instruments, could not invest the High Court with jurisdiction that the Constitution and statute had removed.
Consequences of proceeding without jurisdiction
A judgment delivered without jurisdiction is a nullity and must be set aside notwithstanding party consent or participation
Jurisdiction is everything; without it a court must down its tools and everything done thereafter is a nullity. The appellants' consent and full participation before the High Court could not validate proceedings that the Constitution and statute had assigned elsewhere. The impugned judgment, delivered in disregard of the jurisdictional bar, was therefore set aside in its entirety and the matter remitted to the Environment and Land Court for hearing and determination afresh.
Legal principles established
#- The High Court has no jurisdiction over disputes relating to the environment and the use, occupation of, and title to land, which fall within the exclusive jurisdiction of the Environment and Land Court under Article 162(2)(b) and are excluded from the High Court by Article 165(5) of the Constitution
- Practice directions issued by the Chief Justice cannot confer jurisdiction on a court that has none; the Chief Justice could not direct that the High Court exercise a jurisdiction it did not have
- A court without jurisdiction must stop; all proceedings and the resulting judgment are a nullity, and consent or participation of the parties cannot cure the want of jurisdiction
Court orders
#- 1.The judgment of the High Court (Majanja, J) dated 23rd May 2017 is a nullity and is set aside in its entirety
- 2.The file be forthwith remitted to the Environment and Land Court for expeditious hearing and determination by a Judge of that Court other than Kaniaru J
- 3.No order as to costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- HCCC No. 59 of 2005
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal; appeal grounded on Article 162(2)(b) of the Constitution, section 13 of the Environment and Land Court Act, and Article 165(5) of the Constitution
Relief refused
#Costs of the appeal by the appellants
The appellants were equally to blame in urging the case to proceed to completion before the High Court whose jurisdiction they later impeached
Costs
No order as to costs of the appeal - each party effectively to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It has long been established that jurisdiction is everything and without it the Court must down its tools otherwise everything after that becomes a nullity.
The fundamental question to ask is whether practice directions could confer jurisdiction and the answer is an emphatic no.
The judgment is a nullity and is set aside in its entirety. This is the unfortunate but inevitable consequence of proceeding without jurisdiction.
We direct that the file be forthwith remitted to the Environment and Land Court for expeditious hearing and determination by a Judge of the Court other than Kaniaru J.
As the appellants were equally to blame in enthusiastically urging that the case proceeds to completion before the High Court, the same whose jurisdiction they now successfully impeached, as is their right to, we think they are underserving of costs of this appeal as therefore make no order thereon.
Issues in the judgment
#The certification line states the judgment was delivered on 21st May 2019, but the coram and heading provide no internal contradiction; however the date of judgment in the caption area is stated only in the closing clause. Minor inconsistency in the respondent's reliance on Gazette Notice practice directions versus the court's finding is argumentative, not textual. Note also a typographical variance in the record between 'A.K. Kaniamu' and 'Kaniaru J' referring to the same judge.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lawrence Musango Oketch & 2 others v Karen Enterprises Limited [2019] KECA 737 (KLR)", Case Analysis (2019). Civil Appeal No. 105 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/737/eng@2019-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.