Kibwana Ali Karisa & another v Said Hamisi Mohamed & 3 others [2015] KEELC 620 (KLR)
The bottom line
#Kenyan magistrates can still hear land disputes involving unregistered land, and you cannot overturn their rulings using a constitutional petition instead of an appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Principal Magistrate's Court had jurisdiction over a dispute concerning unregistered land
The magistrate had the requisite jurisdiction over unregistered land measuring 40 ft by 60 ft within his pecuniary jurisdiction
The Court held that under the Sixth Schedule to the Constitution pending proceedings continue, and the Chief Justice's Practice Directions of 9th November 2012 (Rule 7) confirmed that Magistrates' courts continue hearing land cases within their pecuniary jurisdiction. The jurisdiction of Magistrates extends to unregistered land; the suit plot was unregistered, and the magistrate had pecuniary jurisdiction.
Whether a Petition challenging a magistrate's decision is the proper remedy where an appeal lies
A Petition is an improper vehicle; the proper recourse is an appeal
The Petitioners had lost the suit in the subordinate court. The court held that challenging a decision of a magistrate who had jurisdiction by way of Petition, merely because the time for appealing has lapsed, constitutes an abuse of the court process. The proper avenue was an appeal.
Limits of Magistrates' jurisdiction over registered land
Magistrates may hear disputes over unregistered land, and registered land under the RLA valued not exceeding Kshs.500,000; disputes over land under RTA, Land Act, Land Registration Act 2012 and Land Acquisition Act are for the ELC
The court delineated jurisdiction: the Chief Justice's directions apply only to unregistered parcels, and to registered land under the repealed Registered Land Act where value does not exceed Kshs.500,000. For land under the Registration of Titles Act, Land Act, Land Registration Act 2012 and Land Acquisition Act, only the Environment and Land Court has jurisdiction since those statutes define 'the court' accordingly.
Legal principles established
#- Magistrates' courts have jurisdiction to hear and determine land disputes involving unregistered land within their pecuniary jurisdiction pursuant to Rule 7 of the Chief Justice's Practice Directions
- The Chief Justice's practice directions cannot confer jurisdiction on Magistrates where such jurisdiction has been ousted by statute
Court orders
#- 1.The 3rd and 4th Respondents' Preliminary Objection dated 25th July 2014 is allowed
- 2.The Petition dated 11th July 2014 is dismissed with costs
- Jurisdiction invoked
- Articles 22, 23, 40 and 162(2)(b) of the Constitution; Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibwana Ali Karisa & another v Said Hamisi Mohamed & 3 others [2015] KEELC 620 (KLR)", Case Analysis (2015). Petition dated 11th July 2014 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/620/eng@2015-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.