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ELCDismissedPetition dated 11th July 2014 (Malindi)· [2015] KEELC 620 (KLR)

Kibwana Ali Karisa & another v Said Hamisi Mohamed & 3 others [2015] KEELC 620 (KLR)

Environment and Land Court
13 March 2015
1,926 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Petitioners challenged, by way of Petition, the decision of the Principal Magistrate's Court at Kilifi in CMCC No. 544 of 2010, in which the 1st and 2nd Respondents had obtained a permanent injunction over an unsurveyed plot measuring 40 ft by 60 ft. The Petitioners contended that the magistrate acted ultra vires and in excess of jurisdiction, since all land disputes after the promulgation of the Constitution should be heard by the Environment and Land Court under Article 162(2)(b). They sought a declaration that the subordinate court proceedings were null and void, and explained their delay by asserting they only learnt of the judgment on 24th January 2014. The 3rd and 4th Respondents filed a preliminary objection contending that magistrates' courts retain jurisdiction over land disputes pursuant to Gazette Notice No. 16268 of 9th November 2012, and that the Petition was an appeal disguised as a constitutional petition and an abuse of process. The court, applying Rule 7 of the Chief Justice's Practice Directions and following Edward Mwaniki Gatura v AG (Lenaola J), held that magistrates' courts have jurisdiction over land disputes within their pecuniary jurisdiction, subject to limits: their jurisdiction extends to unregistered land, and to registered land under the repealed Registered Land Act valued not exceeding Kshs.500,000; disputes over land under the RTA, Land Act, Land Registration Act 2012 and Land Acquisition Act lie in the ELC. Since the disputed plot was unregistered and within the magistrate's pecuniary jurisdiction, the magistrate had jurisdiction. The Petitioners' proper remedy was an appeal, not a Petition, which the court found to be an abuse of process. The preliminary objection was allowed and the Petition dismissed with costs.

Key legal issues

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01

Whether the Principal Magistrate's Court had jurisdiction over a dispute concerning unregistered land

Holding

The magistrate had the requisite jurisdiction over unregistered land measuring 40 ft by 60 ft within his pecuniary jurisdiction

Reasoning

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.

p. 4
02

Whether a Petition challenging a magistrate's decision is the proper remedy where an appeal lies

Holding

A Petition is an improper vehicle; the proper recourse is an appeal

Reasoning

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.

p. 4
03

Limits of Magistrates' jurisdiction over registered land

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The 3rd and 4th Respondents' Preliminary Objection dated 25th July 2014 is allowed
  2. 2.The Petition dated 11th July 2014 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 40, 162(2)(b), 162(3); Sixth Schedule Section 22
  • Environment and Land Court ActSection 13(1)
  • Magistrate's Court ActSection 13(1) (referred to as 'Magistrate's Act')
  • Registered Land Act (repealed)Section 159
  • Registration of Titles Act (repealed)definition of 'the court'
  • Land Registration Act, 2012definition of 'the court'
  • Land Actdefinition of 'the court'
  • Land Acquisition Actdefinition of 'the court'
  • Law Reform Actprovisions on judicial review leave
  • Civil Procedure RulesOrder 53

Cases cited (2)

  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • Edward Mwaniki Gatura & Another Vs The AG & two others
    NRB Petition No. 72 of 2013; also cited as Edward Mwaniki Gaturu & Another Vs Hon. Attorney General & 3 Others (2013) eKLR
Jurisdiction invoked
Articles 22, 23, 40 and 162(2)(b) of the Constitution; Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.