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ELCDismissedNotice of Motion dated 27th October 2015 (in relation to NAKURU CMCC NO. 712A OF 2008)· [2017] KEELC 1748 (KLR)

Hellena Cheserem (suing as the wife and personal representative of the Estate of Augustine Kiptoo Cheserem (Deceased) v Joel K. Toroitich & 3 others [2017] KEELC 1748 (KLR)

Environment and Land Court of Kenya
27 September 2017
DOD. O. Ohungo
1,189 words in judgment
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The bottom line

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A Nakuru court ruled that a land case started in a magistrates' court before 2010 stays there — adding a map amendment doesn't move it to the Environment and Land Court.

What this practically means

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Executive summary

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This ruling determined the applicant's Notice of Motion dated 27th October 2015 seeking transfer of NAKURU CMCC NO. 712A OF 2008 (Hellena Cheserem v Joel K. Toroitich & Others) from the Chief Magistrate's Court at Nakuru to the Environment and Land Court at Nakuru. The applicant had filed the suit on 8th August 2008 seeking a declaration that the suit property belongs to the estate of Augustine Kiptoo Cheserem (Deceased) and an injunction, and amended the plaint on 10th November 2010 to join the 3rd and 4th respondents and add a prayer for amendment of the map in respect of KAMPI YA MOTO/KAMPI YA MOTO BLOCK 1(MOROP). She argued that the amendment ousted the subordinate court's jurisdiction, invoking Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, 2011. The 1st and 2nd respondents opposed, contending the applicant had not come to court with clean hands and that the subordinate court lacked jurisdiction. The court, per D. O. Ohungo J, held that both the filing and the amendment predated the operationalisation of the ELC, and that section 22 of the Sixth Schedule to the Constitution, section 30(1) of the ELC Act, and paragraph 6 of the Chief Justice's Practice Directions (Gazette Notice No. 5178 of 2014) permitted pending land matters within a magistrate's pecuniary jurisdiction to continue in the same court. No basis for the alleged ouster was demonstrated. The court exercised its discretion against transfer in favour of prudent management of judicial resources. The application was dismissed with each party bearing their own costs, and the parties were directed to expeditiously prosecute the suit before the Chief Magistrate's Court.

Key legal issues

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Whether a prayer for amendment of the map ousted the Chief Magistrate's Court's jurisdiction over a land suit filed on 8th August 2008

Holding

The amendment did not oust the subordinate court's jurisdiction; the suit remained properly before the Chief Magistrate's Court under the transitional provisions and the Chief Justice's Practice Directions

Reasoning

The suit was filed and amended before the ELC became operational. Section 22 of the Sixth Schedule and section 30(1) of the ELC Act allow pending proceedings to continue in the same court. Paragraph 6 of the Chief Justice's Practice Directions (Gazette Notice No. 5178 of 2014) directs magistrates' courts to continue hearing land cases within their pecuniary jurisdiction. No reason was shown why the amendment removed jurisdiction, and judicial resources favour the matter remaining in the subordinate court.

p. 3

Legal principles established

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  • Proceedings relating to land pending before a subordinate court as at the effective date of the 2010 Constitution and the ELC Act continue to be heard and determined by the same court under section 22 of the Sixth Schedule and section 30(1) of the ELC Act, subject to the Chief Justice's Practice Directions

Court orders

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  1. 1.Notice of Motion dated 27th October 2015 dismissed
  2. 2.Each party to bear own costs
  3. 3.Parties to expeditiously prosecute NAKURU CMCC NO. 712A OF 2008 before the Chief Magistrate's Court at Nakuru
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010 and section 13 of the Environment and Land Court Act, 2011

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, "Hellena Cheserem (suing as the wife and personal representative of the Estate of Augustine Kiptoo Cheserem (Deceased) v Joel K. Toroitich & 3 others [2017] KEELC 1748 (KLR)", Case Analysis (2017). Notice of Motion dated 27th October 2015 (in relation to NAKURU CMCC NO. 712A OF 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1748/eng@2017-09-27

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