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Court of AppealPartially AllowedCivil Appeal No. 83 of 2015· [2016] KECA 359 (KLR)

Nellie Wanjala Opembe v Fibi Usita Aura & another [2016] KECA 359 (KLR)

Court of Appeal
29 July 2016
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
4,073 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled land disputes belong in the Environment and Land Court, even when rights violations are claimed, and set aside a High Court judgment.

What this practically means

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Executive summary

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The appellant, widow of the late Jesse Opembe, had obtained an award from the Butere Land Disputes Tribunal in Claim No. 113 of 2000 over two acres of Land Parcel Kisa/Wambulishe/1549. The award was adopted as an order of the Chief Magistrate's Court, Kakamega, and the disputed portion was subsequently subdivided and registered in her name as Kisa/Wambulishe/2024. The respondent, widow of the late registered proprietor, filed Miscellaneous Application No. 54 of 2013 before the High Court at Kakamega under Articles 23, 50, 159 and 258 of the Constitution and the Gicheru Rules, seeking declarations that the Tribunal proceedings and their adoption were unconstitutional, null and void. Chacha Mwita, J. declared the entire proceedings and award unconstitutional and ordered cancellation of the registry entries and reversion of the two acres to the original parcel. On appeal, the Court of Appeal framed two issues: the competence of the suit commenced by Originating Notice of Motion rather than petition, and the jurisdiction of a High Court judge over the matter. On the first, the Court held the Motion substantially met the requirements of a constitutional petition and was competent. On the second, it held the dispute was predominantly one of land and fell within the exclusive jurisdiction of the Environment and Land Court, the High Court judge having wrongly heard the suit after Mrima, J. had properly ordered its transfer. The appeal was allowed in part: the judgment of 16th December 2014 was set aside and the suit remitted to the Environment and Land Court, with each party bearing their own costs.

Key legal issues

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01

Competence of the suit commenced by Originating Notice of Motion instead of a constitutional petition

Holding

The Motion met all the essential elements stipulated in the Gicheru Rules and pointed to the existence of a constitutional petition; the label went only to form and the Motion was competent.

Reasoning

Under the Gicheru Rules, rules 11, 12 and 13, a constitutional application had to be brought by petition supported by affidavit specifying the constitutional provisions allegedly violated, the allegations relied upon and the precise orders sought. An examination of the Motion showed all these essential elements were present. An originating motion is a recognised form of initiating an action, and the court prefers substance over form in matters touching the Constitution. The ground therefore failed.

p. 4
02

Jurisdiction of a High Court judge to determine a dispute that was predominantly one of land

Holding

The dispute was predominantly one of land; it ought to have been heard and determined by a judge of the Environment and Land Court, and the High Court judge wrongly determined the suit after Mrima, J. had properly ordered its transfer.

Reasoning

Article 162(2) requires courts with the status of the High Court to hear disputes relating to the environment and the use and occupation of, and title to, land, and Article 165(5)(b) excludes such matters from the High Court's jurisdiction. Section 13 of the Environment and Land Court Act confers on that court jurisdiction over such disputes, including appellate jurisdiction over decisions of local tribunals. The pleadings showed the dispute concerned subdivision, transfer and registration of land, with the constitutional complaints ancillary to it.

p. 7

Legal principles established

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  • The Environment and Land Court, having the status of the High Court, may determine disputes relating to environment and land together with claims of breaches of fundamental rights associated with those subjects; such claims are incidental to its exclusive domain.
  • The High Court has no jurisdiction over matters falling within the jurisdiction of the courts contemplated in Article 162(2) of the Constitution.
  • On a first appeal, a court's duty is to analyse and re-evaluate the evidence on record and reach its own conclusions.

Court orders

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  1. 1.The judgment of the High Court dated 16th December 2014 is set aside
  2. 2.The suit is remitted to the Environment and Land Court for determination by a judge of that court
  3. 3.Each party bears their own costs both in the Court of Appeal and in the High Court

Authorities

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Legislation

  • Constitution of KenyaArticle 23
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 258
  • Constitution of KenyaSection 19, Sixth Schedule
  • Constitution of KenyaArticle 162(1), (2), (3)
  • Constitution of KenyaArticle 165(1)(a)-(e), (4), (5), (6), (7)
  • Constitution of KenyaArticles 42, 69 and 70
  • The Constitution of Kenya (Supervisory, Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules 2006 (the Gicheru Rules), Legal Notice No. 6 of 17th February 2006Rules 11, 12 and 13
  • Environment and Land Act, Chapter 12A of the Laws of KenyaSection 13(1)-(4)
  • Law of Succession Actnull

Cases cited (11)

  • Selle vs Associated Motor Boat Co.
    [1968] EA 123
  • Jabane vs Olenja
    [1986] KLR 661, 664
  • Ephantus Mwangi vs Duncan Mwangi Wambugu
    (1982-88) 1 KAR 278
  • Mwanasokoni vs Kenya Bus Services
    (1982-88) 1 KAR 870
  • Odinga & 3 Others v. Chesoni & another
    [1992] KLR 662
  • The Matter of the Interim Independent Electoral Commission
    Constitutional Application No. 2 of 2011 (unreported)
  • Owners of Motor Vessel "Lilian S" vs. Caltex Oil (Kenya) Limited
    (1989) KLR 1
  • County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others
    [2015] eKLR
  • Prof. Daniel N. Mugendi v. Kenyatta University & Others
    [2013] eKLR
  • United States International University (USIU) v. The Attorney General & Others
    [2013] eKLR
  • Gcaba v. Minister of Safety and Security & Others
    CCT 64/08 (2009) ZACC 26
On appeal from
High Court of Kenya at Kakamega
Kakamega Misc. Application No. 54 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and applicable statute; underlying motion brought under Articles 23, 50, 159 and 258 of the Constitution, section 19 of the Sixth Schedule and the Gicheru Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nellie Wanjala Opembe v Fibi Usita Aura & another [2016] KECA 359 (KLR)", Case Analysis (2016). Civil Appeal No. 83 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/359/eng@2016-07-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.