Rose Kamene Charles v Hillary Kiplangat & another [2017] KEELC 1243 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed magistrates' courts can still hear older land cases, but agreed to transfer this 2012 land dispute for specialist handling.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of magistrates' courts over land matters filed before operationalisation of the ELC
The Chief Magistrate's Court had and still has jurisdiction over the suit filed on 11th May 2012, since the ELC was not operational until 5th November 2012, and under section 30(1) of the ELC Act and section 22 of the Sixth Schedule such pending proceedings continue in the same court, subject to the Chief Justice's Practice Directions
The court traced the establishment of the ELC under Article 162(2)(b) and section 4 of the ELC Act, noting the Act came into force on 30th August 2011 but pioneer judges were only appointed on 3rd October 2012 and sworn in on 5th November 2012. Transitional provisions in section 22 of the Sixth Schedule and section 30(1) of the ELC Act, together with the Practice Directions of 25th July 2014, allowed magistrates' courts with requisite pecuniary jurisdiction to continue hearing land cases. Filing in the magistrates' court was therefore proper.
Whether the court should exercise its discretion to transfer the suit notwithstanding the magistrates' court's jurisdiction
Yes - the transfer was ordered because the court has discretion under section 18(1)(b)(i) of the Civil Procedure Act and the respondents did not oppose the application
Although the subordinate court ordinarily should continue hearing the matter to conclusion, the judge held that the discretionary power to transfer existed, and since counsel for the respondents at the inter partes hearing urged the court to allow the application, the discretion was exercised in favour of transfer, with costs in the cause.
Legal principles established
#- A suit relating to land filed in a magistrates' court before the Environment and Land Court was operationalised was properly filed there, and such courts retain jurisdiction under the transitional provisions and the Chief Justice's Practice Directions
- The Environment and Land Court has jurisdiction over all disputes concerning the environment and the use, occupation of and title to land
Court orders
#- 1.Nakuru CMCC No. 528 of 2012 Rose Kamene Charles –vs- Hillary Kiplagat and David Cherutich be transferred to the Environment and Land Court for hearing and determination
- 2.Costs in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; section 4 and section 13(1) of the Environment and Land Court Act, 2011; Section 18(1)(b)(i) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Kamene Charles v Hillary Kiplangat & another [2017] KEELC 1243 (KLR)", Case Analysis (2017). Nakuru CMCC No. 528 of 2012 (transfer application, Notice of Motion dated 9th March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1243/eng@2017-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.