BY SAM ALFAN.
Carton maker Megvel Cartons limited has suffered after the Supreme Court rejected to hear its appeal over a fight for a parcel of land worth Sh2 billion in Machakos County.
A bench of five judges of the Supreme Court led by Deputy Chief Justice Philomena Mwilu, Mohamed Ibrahim, Njoki Ndung’u, Isaac Lenaola and William Ouko dismissed the appeal by the company saying the court does not have jurisdiction to hear the case.
“Likewise, and for that very reason, the Petition of appeal is incompetent and is also struck out,” the judges ruled.
The judges noted that the foundation of the appeal is built on quicksand and its fate, no matter how long it is delayed, is inevitable.
Megvel Cartons ltd moved to Supreme Court seeking to restrain Diesel Care ltd from entering or trespassing or interfering with its possession of the land in Mavoko Township, Machakos County.
The company further sought to stay execution of judgment of Justice Oscar Angote of the Environment and Land Court delivered on 26th January 2018 in Machakos and which was confirmed by the Court of Appeal decision on 17th February, 2023.
The firm’s director Prasul Jayantilal Shah said in his affidavit there was real and imminent danger of Diesel Care ltd dispossessing the manufacturer from the land following the judgment of the Court of Appeal.
The company argued that it was facing eviction from the suit property.
Diesel Care ltd through Senior Counsel
Paul Muite opposed the application saying the main issue in the case was which of the two titles held by the two firms was the genuine.
The veteran lawyer told the Apex court that both courts held that the title deed held by Megvel was a forgery.
“For this reason, Megvel Cartons ltd did not plead or argue any constitutional issues for interpretation or application in the Land Court or in the Court of Appeal,” the lawyer said.
Muite said the Supreme Court lacks jurisdiction to hear the case because the matter does not meet the jurisdictional threshold of the Constitution under Article 163(4)(a) as it does not involve the interpretation or application of the Constitution.
“The application and appeal are, in the result improperly before this Court and incurably defective as there is no automatic right of appeal and leave to appeal has not been sought therefore the petition ought to be struck out,” Muite submitted.
Lawyer Muite submitted that the application is premised is fatally flawed, according to Diesel Care ltd, the application lacks merit and the applicant has failed to satisfy the principles for the grant of the relief of interlocutory injunctive orders and stay of execution.
He added that Megvel Cartons ltd application is devoid of merit as the company have failed to demonstrate any grounds that merit the granting of the Orders sought.
The lawyer termed the application is bad in law, misconceived, vexatious and an abuse of the process of the Apex court.
He submitted that a mere allegation of Constitutional questions for interpretation by this Court do not automatically bring an intended appeal within the sphere of Article 163 (4) (a) of the Constitution thus dispensing with the need for leave under Article 163 (4) (b) of the Constitution.
The veteran lawyer told the court to hold otherwise would be to open the floodgates for all property or commercial disputes to be appealable to this Apex Court on the peripheral allegation that the Court of Appeal’s judgment infringes on the Appellants Constitutional rights under Article 40.
