Joseph Otieno Midigo v Moses Odhiambo Osano (Sued as the Legal Representative of the Estate of the late Joseph Osano Otieno) & 2 Others [2018] KEELC 325 (KLR)
The bottom line
#A Kenyan court confirmed that magistrates' courts can hear customary land trust disputes, and transferred this case closer to where the land sits.
What this practically means
#Executive summary
#Key legal issues
#Whether the SPM's Court at Oyugis has jurisdiction over the dispute
Yes. Although the claim concerns title and alleged customary trust, customary trusts are overriding interests under Section 28(b) of the Land Registration Act, and designated magistrates' courts have jurisdiction under Section 9 of the Magistrates' Courts Act, 2015 read with Section 26 of the ELC Act.
The court noted the claim is hinged on registration of a title to land and creation of a trust thereon. Citing Mwangi v Mwangi, it held that registration is a creation of the law and the circumstances surrounding registration must be examined to determine whether a trust was envisaged. Since customary trusts are overriding interests under Section 28(b) of the Land Registration Act, 2012, and Sections 26(3) of the ELC Act and 9(1) of the Magistrates' Courts Act confer jurisdiction on designated magistrates' courts, the Oyugis SPM's Court - which has designated magistrates - can entertain the claim.
Whether the suit should be transferred to Oyugis SPM's Court
Yes. The suit land is in Oyugis, Homa-Bay County; transfer is convenient, will not occasion undue hardship, and serves access to justice under Articles 3(6) and 48 of the Constitution.
The court, exercising the power under Section 18(1)(a) of the Civil Procedure Act, found that the subject matter is situated in Oyugis in Homa-Bay County and that transfer would be convenient to all parties without undue hardship or expense. Relying on the access-to-justice provisions of the Constitution, it found the application to have merit and allowed it in terms of prayers (a) and (b).
Legal principles established
#- Jurisdiction is a matter of law and goes to the root of litigation, flowing from the Constitution or statute or both.
- Trusts, including customary trust, are overriding interests under Section 28(b) of the Land Registration Act, 2012 and magistrates' courts have jurisdiction to entertain such claims under the Magistrates' Courts Act, 2015.
- Under Section 18(1)(a) of the Civil Procedure Act, the ELC may transfer a suit to a designated magistrates' court.
Court orders
#- 1.The suit is withdrawn from the Environment and Land Court and transferred to the Senior Principal Magistrate's Court at Oyugis
- 2.Costs of the application to be in the cause
- 3.Mention for directions before a designated magistrate at Oyugis Senior Principal Magistrate's Court on 19/12/2018, with parties to be notified
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Sections 13(1) and 26(3) & (4) of the Environment and Land Court Act, 2011; Section 18(1)(a) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Otieno Midigo v Moses Odhiambo Osano (Sued as the Legal Representative of the Estate of the late Joseph Osano Otieno) & 2 Others [2018] KEELC 325 (KLR)", Case Analysis (2018). Not stated in judgment (ELC suit, plaint dated 27th March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/325/eng@2018-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.