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ELCDismissedELC Appeal No. 2 of 2014· [2018] KEELC 2621 (KLR)

Seth Mudanya Kaverenge v Absolom Stephen Omondi [2018] KEELC 2621 (KLR)

Environment and Land Court
28 June 2018
NMN.A. Matheka
2,371 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a challenge to a magistrate's land ruling, confirming magistrates could hear land cases filed before the 2015 law changes.

What this practically means

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Executive summary

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The appellant, Seth Mudanya Kaverenge, appealed to the Environment and Land Court at Kakamega against the ruling and orders of Susan N. Mwangi, Ag. Senior Resident Magistrate, in Vihiga Senior Principal Magistrates Court Civil Suit No. 94 of 2013, dated 31st July 2014. He raised five grounds: that the magistrate ruled on the merits of a defence without hearing him; that the ruling breached natural justice and Article 50 of the Constitution; that she determined the propriety of service of summons without allowing cross-examination of the process server; that she mischaracterised the application as an exercise of discretion; and that she lacked jurisdiction over a matter involving interest in land, which belongs to the Environment and Land Court under Article 162(2) and section 12(2)(d) of the Environment and Land Court Act. He sought allowance of the appeal, setting aside of the ruling, and allowance of his application dated 20th June 2014. The respondent was served but did not attend or file submissions. The court examined the legislative history of magistrates' jurisdiction over land matters, applying the Court of Appeal decision in Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others (2017) eKLR and noting the Statute Law (Miscellaneous Amendments) Act, 2015 and the Magistrates Courts Act, 2015. It concluded that magistrates' courts had jurisdiction over land matters prior to the 2015 amendments. Applying Mwanasokoni v Kenya Bus Service, the court found the magistrate's decision on service was judiciously arrived at on cogent evidence and declined to interfere. The appeal was dismissed with costs to the appellant.

Key legal issues

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01

Jurisdiction of magistrates' courts over land matters at the material time

Holding

Magistrates' courts had jurisdiction over land matters prior to the 2015 amendments; the amendments by the Statute Law (Miscellaneous Amendments) Act, 2015 and the Magistrates Courts Act, 2015 clothed subordinate courts with jurisdiction over land disputes subject to pecuniary limits

Reasoning

The court traced the legislative history: the Law Society of Kenya v Malindi Law Society decision had held section 2 of the Statute Law (Miscellaneous Amendments) Act, 2015 null and void, meaning magistrates' courts retained jurisdiction over land matters prior to the amendments. The court considered that the suit was filed in October 2013, before the Magistrates Courts Act, 2015 commenced, so the magistrate did not lack jurisdiction.

p. 3
02

Propriety of ruling on service of summons without cross-examination of the process server

Holding

The learned Ag. Senior Resident Magistrate did not err in ruling on the propriety of service before allowing cross-examination, having satisfied herself that service was proper

Reasoning

The court found the magistrate satisfied herself that service was proper before rendering her decision. Applying Mwanasokoni v Kenya Bus Service, the appellate court revisited the record and found no basis to interfere with findings based on cogent evidence, including the affidavit of service.

p. 3

Legal principles established

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  • An appellate court will not ordinarily interfere with the findings of fact of the trial court unless they were based on no evidence at all, on misapprehension of the evidence, or where the court acted on wrong principles
  • An appellate court is duty bound to revisit the evidence on record, evaluate it and reach its own decision

Court orders

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  1. 1.The appeal is dismissed for lack of merit
  2. 2.The appellant is to meet the costs of the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 50; Article 162(2); Article 165(5); Article 169(2); Article 23(2); Article 169(1)(a) and (2)
  • Civil Procedure RulesOrder 18; Order 36 Rule 2; Order 36 rule 10; Order 5 Rule 16
  • Environment and Land Court ActSection 12(2)(d); Section 26(1)-(4); Cap 12A
  • Statute Law (Miscellaneous Amendments) Act, 2015Section 2 (Act No. 25 of 2015)
  • Land Registration ActSection 101
  • Land ActSection 150
  • Magistrates Courts ActSection 9; Section 7(1) (Act No. 26 of 2015)
  • Civil Procedure ActOverriding objectives
  • Industrial Court Act, 2011Section 29

Cases cited (2)

  • Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others
    (2017) eKLR
  • Mwanasokoni v Kenya Bus Service
    (1982 - 88) 1 KAR 870
On appeal from
Vihiga Senior Principal Magistrates Court
Civil Suit No. 94 of 2013
Jurisdiction invoked
Article 162(2) of the Constitution; Environment and Land Court Act (Cap. 12A), section 12(2)(d); section 26 (appeals from designated magistrates' courts lie with the Environment and Land Court)

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, "Seth Mudanya Kaverenge v Absolom Stephen Omondi [2018] KEELC 2621 (KLR)", Case Analysis (2018). ELC Appeal No. 2 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2621/eng@2018-06-28

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