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ELCOtherELC No 764 of 2013· [2015] KEELC 741 (KLR)

Sylvester Munyalo Makundi v George Mutemi Makundi & 2 others [2015] KEELC 741 (KLR)

High Court of Kenya, Environment and Land Court
25 March 2015
894 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed you can file a land case at the nearest court if none exists where the land is located.

What this practically means

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Executive summary

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The plaintiff sued the three defendants over land in a suit filed on 28 June 2013 at the Milimani Environment and Land Court. The 1st and 2nd defendants, through counsel Mr Ngolya, raised a preliminary objection contending that the Court lacked territorial jurisdiction because the defendants reside in Kitui and the subject parcels are in Kitui County, so the suit should have been filed at Kitui Law Courts or Machakos High Court, in alleged violation of Sections 11, 12 and 13 of the Civil Procedure Act. Plaintiff's counsel, Mr Kamwendwa, opposed, arguing the High Court has unlimited original and territorial jurisdiction under the Constitution; that no ELC existed in Kitui or Machakos at the time of filing, making Milimani the nearest such court; and that the Civil Procedure Act provisions are subordinate to the Constitution. Judge L. Gacheru held that jurisdiction goes to the root of the matter and the objection properly raised a point of law. However, Article 165(5) ousts the High Court's jurisdiction over land and environment disputes vested by Article 162(2) in the ELC, which has the same status as the High Court with unlimited original jurisdiction. Since the suit was filed in 2013, before an ELC was established at Machakos High Court, the plaintiff properly filed in the nearest ELC at Milimani and did not violate Sections 12 and 13 of the Civil Procedure Act. The preliminary objection was dismissed with costs to the plaintiff, and the matter was directed to proceed to hearing on the merits.

Key legal issues

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01

Territorial jurisdiction of the Environment and Land Court

Holding

The Court held it has territorial jurisdiction to determine the suit because it was filed in 2013 before an ELC had been established at Machakos High Court, and Milimani hosted the nearest ELC

Reasoning

Article 165(5) ousts the High Court's jurisdiction over matters within Article 162(2) courts. The ELC, established in 2011, has the same status as the High Court with unlimited original jurisdiction over land and environment disputes. Since no ELC existed in Machakos at filing, the plaintiff properly filed in the nearest ELC at Milimani, and Sections 12 and 13 of the Civil Procedure Act were not violated.

p. 2
02

Nature of jurisdiction as a preliminary objection

Holding

The objection touched on a point of law and qualified as a preliminary objection, but failed on its merits

Reasoning

The court reiterated that jurisdiction is everything and goes to the root of the matter; a court without jurisdiction must down its pen. However, on the facts, the territorial jurisdiction objection was unmerited given the constitutional mandate of the ELC and the absence of an ELC at Machakos when the suit was instituted.

p. 1

Legal principles established

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  • Where no Environment and Land Court existed at the nearest High Court when a suit was filed, filing in the nearest available ELC does not violate the territorial jurisdiction rules of the Civil Procedure Act
  • The Environment and Land Court has the same status as the High Court and unlimited original jurisdiction over land and environment disputes

Court orders

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  1. 1.The preliminary objection raised by the 1st and 2nd Defendants is dismissed with costs to the Plaintiff
  2. 2.Matter to proceed for hearing and be determined on merit

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 165(3)(a)
  • Constitution of KenyaArticle 165(5)
  • Civil Procedure ActSections 11, 12 and 13
  • Environment and Land Court ActSection 13(1)
Jurisdiction invoked
Article 162(2) of the Constitution and the Environment and Land Court Act, Section 13(1)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Sylvester Munyalo Makundi v George Mutemi Makundi & 2 others [2015] KEELC 741 (KLR)", Case Analysis (2015). ELC No 764 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/741/eng@2015-03-19

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