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ELCAllowedNot stated in judgment (ELC suit, plaint dated 27th March 2014)· [2018] KEELC 325 (KLR)

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)

Environment and Land Court
13 November 2018
1,599 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 2nd defendant applied by notice of motion dated 19th January 2018, under Order 51(1) of the Civil Procedure Rules, Sections 3A and 18(1)(a) of the Civil Procedure Act, Section 9(a) of the Magistrates' Courts Act 2015 and Sections 26(3) and (4) of the Environment and Land Court Act, for withdrawal of the suit from the Environment and Land Court and transfer to the Senior Principal Magistrate's Court at Oyugis, relying on Gazette Notice No. 11936 of 8th December 2017 designating that court. The underlying suit, commenced by plaint dated 27th March 2014, concerns ownership, registration and alleged customary trust over land parcel Central Karachuonyo/Kogweno Oriang/648, with the plaintiff alleging fraud and trust by the 1st defendant's deceased father. The plaintiff opposed, contending the Oyugis magistrate lacked jurisdiction over customary trust claims and that the application was meant to delay the suit. Framing two issues on jurisdiction and transfer, the court held that jurisdiction goes to the root of litigation, flowing from the Constitution or statute, and that customary trusts are overriding interests under Section 28(b) of the Land Registration Act which designated magistrates' courts may entertain under the Magistrates' Courts Act, 2015 read with Section 26 of the ELC Act. Finding the suit land situated in Oyugis, Homa-Bay County, and invoking Articles 3(6) and 48 on access to justice, the court allowed the application in terms of prayers (a) and (b), transferring the suit to the SPM's Court at Oyugis with costs in the cause, and directed mention before a designated magistrate on 19/12/2018.

Key legal issues

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01

Whether the SPM's Court at Oyugis has jurisdiction over the dispute

Holding

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.

Reasoning

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.

p. 2
02

Whether the suit should be transferred to Oyugis SPM's Court

Holding

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.

Reasoning

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).

p. 3

Legal principles established

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  • 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

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  1. 1.The suit is withdrawn from the Environment and Land Court and transferred to the Senior Principal Magistrate's Court at Oyugis
  2. 2.Costs of the application to be in the cause
  3. 3.Mention for directions before a designated magistrate at Oyugis Senior Principal Magistrate's Court on 19/12/2018, with parties to be notified

Authorities

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Legislation

  • Civil Procedure RulesOrder 51(1); Order 51 Rule 16
  • Civil Procedure Act (Cap 21)Sections 3A and 18(1)(a)
  • Magistrates' Courts Act, 2015Sections 9(a) and 9(1)
  • Environment and Land Court Act, 2011Sections 26(3) & (4), 13(1) and 19(2)
  • Constitution of Kenya, 2010Articles 162(2)(b), 169(2), 3(6) and 48
  • Land Registration Act, 2012Sections 2, 24, 25, 26, 28(b), 30 and 80

Cases cited (5)

  • Owners of Motor Vessel Lilian “S” v Caltex Oil
    (1989) KLR
  • Malindi Law Society v AG & 4 Others
    (2016) eKLR
  • Republic v Karisa Chengo and 2 others
    (2017) eKLR
  • Samwel Kamau Macharia & Anor v Kenya Commercial Bank Ltd and two others
    (2012) eKLR
  • Mwangi & Anor v Mwangi
    (1986) KLR 328
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

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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, "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.