Automated Summary
Key Facts
The case involves a boundary dispute between Clark Ambeba and Zephania William Imbote over land use. The respondent claimed the appellant's eucalyptus trees planted on the common boundary damaged his maize and bean crops, leading to a compensation claim. The trial court ruled in favor of the respondent, but the High Court dismissed the appeal for lack of jurisdiction under the Environment and Land Court Act and Article 162(2) of the Constitution.
Issues
- Whether the High Court has jurisdiction to hear the appeal over boundary disputes and land use, as the Environment and Land Court is the exclusive forum for such matters under Article 162(2) of the Constitution and section 13 of the Environment and Land Court Act.
- Whether the respondent is entitled to compensation for crop damage caused by the appellant's eucalyptus trees planted on the common boundary, and whether the respondent illegally occupied the appellant's land, leading to a counterclaim for mesne profits.
Holdings
- The court determined that it lacks jurisdiction over the appeal, as disputes regarding boundaries, land occupation, and land use fall under the exclusive jurisdiction of the Environment and Land Court per section 13 of the Environment and Land Court Act and Article 162(2) of the Constitution. The High Court cannot exercise jurisdiction over such matters, as affirmed by Article 165(5) of the Constitution.
- The appeal was dismissed for incompetence due to being filed in a court without jurisdiction. The court held that an incompetent suit cannot be transferred to another court, as it is considered dead from inception. Case law supports striking out or dismissing such appeals rather than transferring them to the correct forum.
Remedies
- The court awarded compensation to the respondent for damage caused to his maize and bean crops by the eucalyptus trees planted too close to the boundary by the appellant.
- The court ordered the appellant to cut down the eucalyptus trees within 14 days, with the respondent authorized to do so in default. This was to prevent further crop damage.
- The appeal was dismissed due to the High Court's lack of jurisdiction over boundary disputes, which fall under the Environment and Land Court's exclusive authority. The appeal was deemed incompetent and non-transferable.
Legal Principles
The High Court has no jurisdiction over disputes concerning boundaries, occupation of land, and land use, which are exclusively under the Environment and Land Court as per Article 162(2) and 165(5) of the Constitution of Kenya, 2010, and section 13 of the Environment and Land Court Act. A court cannot arrogate jurisdiction not conferred by law, and appeals filed without jurisdiction are incompetent and must be dismissed rather than transferred.
Precedent Name
- Equity Bank Limited vs. Bruce Mutie Mutuku t/a Diani Tour Travel
- Samuel Kamau Macharia & another vs. Kenya Commercial Bank Limited & 2 others
- Phoenix of EA Assurance Company Limited vs. SM Thiga t/a Newspaper Service
Cited Statute
- Environment and Land Court Act
- Constitution of Kenya
Judge Name
WM Musyoka
Passage Text
- 7. The dispute in Butere PMCCC No. 6 of 2011 revolved around boundary, occupation of land and land use. The court with jurisdiction, on boundaries, occupation of land and land use, is the Environment and Land Court, by dint of section 13 of the Environment and Land Court Act, No. 19 of 2011. Section 13 of the Environment and Land Court Act should be read together with Article 162(2) of the Constitution of Kenya, 2010, which envisages the creation of a court to handle matters relating to occupation of land and land use, and also Article 165(5) of the same Constitution, which declares that the High Court has no jurisdiction over disputes that fall under Article 162(2), and, by extension, section 13 of the Environment and Land Court Act. The effect of it is that disputes over boundaries, occupation of land and land use are the exclusive preserve of the Environment and Land Court, meaning that an appeal arising from the decisions in Butere PMCCC No. 6 of 2011 could only lie to the Environment and Land Court, as the High Court has no jurisdiction. Jurisdiction is conferred by the Constitution or by statute, and the court cannot arrogate itself jurisdiction, by what is known as judicial craft. See Samuel Kamau Macharia & another vs. Kenya Commercial Bank Limited & 2 others [2012] eKLR (Mutunga CJ&P, Tunoi, Ojwang, Wanjala & Ndung'u SCJJ).
- 8. So, the appeal herein was filed in a court bereft of jurisdiction. I cannot determine it, for there is no jurisdiction. The only consideration that I may give is between ordering transfer of the appeal to the court with jurisdiction, and dismissing the appeal altogether for incompetence. Case law appears to favour the striking out or dismissal of appeals filed before a court without jurisdiction, instead of transferring them to the court with jurisdiction. The argument is that the appeal is incompetent, and the court ought not to transfer an incompetent suit to the other court, for that court ought not to entertain a suit that was originally incompetent. In other words, a court should not transfer incompetence, for an incompetent suit is dead from inception. Secondly, if the court does not have jurisdiction to entertain the suit, there would be no jurisdiction to transfer it. See Equity Bank Limited vs. Bruce Mutie Mutuku t/a Diani Tour Travel [2016] eKLR (Makhandia, Ouko & M'Inoti JJA) and Phoenix of EA Assurance Company Limited vs. SM Thiga t/a Newspaper Service [2019] eKLR (Karanja, Gatembu & Sichale JJA).