Barrack v Anyach (Civil Case E005 of 2024) [2025] KEHC 12043 (KLR) (12 June 2025) (Ruling)
Neutral citation:
[2025] KEHC 12043 (KLR)
Republic of Kenya
Civil Case E005 of 2024
OA Sewe, J
June 12, 2025
Between
Eunice Awuor Barrack
Plaintiff
and
Dancun Anyach
Defendant
Ruling
1.This suit was filed on the 17th November 2024 by the plaintiff, Eunice Awuor Barrack. She prayed for general damages as well as an order reinstating her as a tenant of the defendant, Dancan Anyach, and to compel the defendant to release her business items unlawfully confiscated by the defendant. The plaintiff explained that sometime in the month of August 2021, she entered into a tenancy agreement with the defendant at a monthly consideration of Kshs. 12,000/=. She added that she paid the monthly rents as agreed until the month of May and June 2023 when, due to a robbery that occurred in the demised premises, she was unable to pay rent for the two months.
2.The plaintiff’s cause of action was that, on the 5th June 2023, the defendant, without any lawful justification, invaded the demised premises and damaged shelves before taking away assorted business items and personal property, all worth about Kshs. 700,000/=; and that the defendant was threatening to dispose of the property by way of auction, thereby prompting the filing of Homa Bay Chief Magistrate’s Civil Case No. E092 of 2023. She averred that the orders made in that suit formed the genesis of the instant suit.
3.Upon being served with the Plaint and Summons to Enter Appearance, the defendant filed a Notice of Preliminary Objection dated 8th December 2024, contending that:a.The Court lacks jurisdiction to hear and determine this suit.b.The suit offends the provisions of Sections 2, 6, 12 and 15 of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act, Cap 301 of the Laws of Kenya and the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and Procedure) Regulations, 1966.
4.Directions were thereafter given on 18th March 2025 that the Preliminary Objection be canvassed by way of written submissions. and although the defendant complied and filed written submissions dated 31st March 2025, the plaintiff did not. The defendant submitted that the facts as they were before the lower court have not changed; and therefore the dispute falls within the jurisdiction of the Business Premises Rent Tribunal, established under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. The defendant relied on Owners of Motor Vessel Lillian “S” v Caltex Oil (Kenya) Limited [1989] eKLR and Samuel Kamau Macharia v Kenya Commercial Bank & 2 others, Civil Appl. No. 2 of 2011 among other authorities to underscore the argument that a court of law can only exercise jurisdiction as conferred by the Constitution or statute.
5.The defendant further relied on Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act for the submission that any appeals from the Tribunal can only be filed before the Environment and Land Court as opposed to the High Court. He therefore urged the Court to uphold the Preliminary Objection and dismiss this suit with costs for want of jurisdiction.
6.In her oral submissions made on 18th April 2025, the plaintiff reiterated that this is a dispute between a tenant and landlord in respect of a shop at Rodi Kopany. She pointed out that the matter was before the lower court where a ruling was made on 31st October 2024 to the effect that the lower court lacked the jurisdiction to entertain it. The parties were accordingly referred to the High Court because the landlord/tenant relationship was no longer there. The plaintiff expressed the conviction that the matter is before the correct forum.
7.In the case of Mukisa Biscuits Manufacturers Ltd v West End Distributors Ltd [1969] EA 696, it was well-stated that a preliminary objection consists of:
8.Therefore, although the plaintiff filed a Replying Affidavit herein, sworn by her on 10th January 2025 to which he annexed a copy of the Judgment of the lower court, it is impermissible for the Court to place reliance on such evidence for purposes of determining a preliminary objection. This point was made by Hon. Ojwang, J. (as he then was) as follows in Oraro v Mbaja [2005] 1 KLR 141, Hon. Ojwang, J. (as he then was) made the point that:
9.The purposes of a preliminary objection was explicated by the Supreme Court in Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling), as follows:
10.In the premises, the instant Preliminary Objection, to the extent that it is based on jurisdiction, was validly taken. Therefore, the issue for determination is whether the Court has the requisite jurisdiction to hear and determine this suit.
11.It is now trite law that jurisdiction is everything and without it, a court must down its tools. In The Owners of Motor vessel Lillian ‘S’ v Caltex Kenya Limited [1989] KLR 1 the Court held:
12.Moreover, in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court pointed out that:
13.The jurisdiction of the High Court is provided for in Article 165(3) of the Constitution thus:(3)Subject to clause (5), the High Court shall have—a.unlimited original jurisdiction in criminal and civil matters;b.jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;c.jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;d.jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—i.the question whether any law is inconsistent with or in contravention of this Constitution;ii.the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;iii.any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; andiv.a question relating to conflict of laws under Article 191; ande.any other jurisdiction, original or appellate, conferred on it by legislation.
14.In the same vein, Article 165(5)(b) of the Constitution states in peremptory terms that:(5)The High Court shall not have jurisdiction in respect of matters: -…b)Falling within the jurisdiction of the courts contemplated in Article 162(2).
15.Moreover, Section 13 of the Environment and Land Court Act, 2011, an Act of Parliament enacted pursuant to Article 162(2) of the Constitution, states as follows with reference to the jurisdiction of the Environment and Land Court:1.The court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.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.relating to environmental planning and protection, climate issues, land use, planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources.b.relating to compulsory acquisition of land;c.relating to land administration and management;d.relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interest in land; ande.any other dispute relating to environment and land.
16.The suit is in connection with a tenancy and the parties are in agreement that the demised premises comprise a shop. Therefore, the suit ought to have been filed before either the Business Premises Rent Tribunal or the Environment and Land Court. This is because Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act provides that:
17.It is therefore immaterial that the lower court ordered that the suit be filed before the High Court; for jurisdiction cannot be conferred by judicial craft. In Republic v Chief Land Registrar & another [2019] eKLR Hon. Mativo, J. held that:
18.Similarly, in Delmonte Kenya Limited v County Government of Murang’a & Another [2019] eKLR a multiple bench of the High Court held that:
19.Having found that the suit was filed in a court without jurisdiction to entertain it, it cannot be transferred to the Environment and Land Court. The Supreme Court of Kenya restated the position in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, thus:
20.Likewise, in Phoenix of EA Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR, the Court of Appeal held:
20.It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void. Civil Appeal No. 6 of 2018 Phoenix East Africa Assurance Co.ltd v. S.m. Thiga T/a Newspaper Services is therefore a nullity as it was based on a nullity.” (also see Boniface Waweru Mbiyu v Mary Njeri & Tai Yun Hwang, Misce. Application No. 639 of 2005 [2005] eKLR)
21.In view of the above, the Preliminary Objection dated 8th December 2024 is hereby upheld with the result that this suit is hereby struck out for want of jurisdiction. Each party to bear their own costs.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 12TH DAY OF JUNE 2025SIGNED BY: HON. LADY JUSTICE OLGA A. SEWEHOMABAY HIGH COURT