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ELCDismissedNotice of Motion dated 6th June 2017 (ELC, Garissa)· [2017] KEELC 1059 (KLR)

Lena Mbuli Kilonzo v Joshua Mwandikwa & 8 others [2017] KEELC 1059 (KLR)

Environment and Land Court
24 October 2017
ECE.C Cherono
597 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court ruled that Kenya's magistrate courts can hear land disputes, so the case stayed where it was filed.

What this practically means

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Executive summary

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This was a Notice of Motion dated 6th June 2017 brought under Section 18 of the Civil Procedure Act and Article 162(2)(b) of the Constitution, seeking transfer of Mwingi SRMCC No. 9 of 2011 (Lena Mbuli Kilonzo v Joshua Mwandikwa & 8 others) to the Environment and Land Court at Garissa, together with interim status quo orders. The applicant, through the supporting affidavit of Peter Mbiti Kilonzo, contended that the suit concerned a land dispute triable only by the ELC and that the Mwingi law court was not an ELC court. The respondents, through the replying affidavit of Susan Nduni Makau, concurred that the senior magistrate's court at Mwingi had no jurisdiction and did not oppose transfer in principle. The court noted that the application rested on the ruling in Malindi Constitutional Petition No. 3 of 2016 delivered on 11th November 2016, which declared Section 2 of the Statute Law (Miscellaneous Amendment) Act 2015 inconsistent with Article 162(2) of the Constitution. However, the Court of Appeal in Civil Appeal No. 287 of 2017, in a judgment delivered on 19th October 2017 (Waki, Nambuye, Gatembu Kairu, Musinga and Murgor JJ), partially allowed the appeal and set aside the declaration of unconstitutionality. Accordingly, subordinate courts retain jurisdiction over environment and land matters. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Jurisdiction of subordinate courts over environment and land matters after the Statute Law (Miscellaneous Amendment) Act 2015

Holding

The application for transfer founded on the supposed lack of jurisdiction of the magistrate's court fails because the Court of Appeal has upheld the constitutionality of the provisions conferring such jurisdiction on subordinate courts

Reasoning

The applicant relied on the Malindi High Court ruling in Constitutional Petition No. 3 of 2016, which declared Section 2 of the Statute Law (Miscellaneous Amendment) Act 2015 inconsistent with Article 162(2) of the Constitution. However, that ruling was set aside on appeal by the Court of Appeal on 19th October 2017. As the applicants in that matter appealed and the appellate court partially allowed the appeal and set aside the declaration of unconstitutionality, the premise of the transfer application fell away, and the magistrate's court retains jurisdiction.

p. 2

Legal principles established

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  • Following the Court of Appeal's decision in Civil Appeal No. 287 of 2017, subordinate courts have jurisdiction to hear and determine matters relating to environment and the use, occupation of and title to land

Court orders

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  1. 1.The Notice of Motion dated 6th June 2017 is dismissed
  2. 2.Each party to bear his own costs

Authorities

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Legislation

  • Civil Procedure ActSection 18
  • Constitution of Kenya 2010Article 162(2)(b); Article 162(2)
  • Statute Law (Miscellaneous Amendment) Act 2015Section 2
  • Environment and Land Court ActSections 7(3), 8(d), 26(3) and (4)
  • Magistrate's Court Act 2015Sections 9(a) and (b)

Cases cited (2)

  • Constitutional Petition No. 3 of 2016 (Malindi)
    ruling delivered 11th November 2016
  • Civil Appeal No. 287 of 2017
    unreported, judgment delivered 19th October 2017
Jurisdiction invoked
Section 18 of the Civil Procedure Act and Article 162(2)(b) of the Constitution of Kenya 2010

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, "Lena Mbuli Kilonzo v Joshua Mwandikwa & 8 others [2017] KEELC 1059 (KLR)", Case Analysis (2017). Notice of Motion dated 6th June 2017 (ELC, Garissa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1059/eng@2017-10-24

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