Francis Ngaya Odanga v Dickson Otieno Kogwang [2018] KEELC 4431 (KLR)
The bottom line
#A Siaya magistrate who wasn't gazetted for land cases had no power to order a grave exhumed, so all those orders were thrown out.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate had jurisdiction over the Environment and Land dispute
The trial magistrate had no jurisdiction as he was not gazetted to handle Environment and Land cases at the material time; his failure to determine the jurisdictional objection first vitiated the proceedings and orders
The pleadings show the Defendant raised a preliminary objection questioning jurisdiction. The trial magistrate never pronounced himself on it. The magistrate gazetted for Environment and Land cases (Gazette Notice No.11930 of 8th December 2017) was Tom Mark Olando, appointed after the events; T.M. Olando was not among magistrates gazetted in Gazette Notice No.1472 of 11th March 2016. Without jurisdiction the court must down its tools, so the order of 5th October 2016 could not stand.
Whether the consent recorded before the trial court was obtained through coercion, misrepresentation or fraud
The Appellant did not establish that the consent was vitiated; the reference to the Land Registrar and Surveyor was by consent and the appeal was in any event not against the consent order of 7th September 2016, which was not appealed
The Appellant participated in the survey exercise, whose report confirmed the grave and structure stood on North Gem/Asayi/872 registered in the Respondent's name. The parties had the option of settling on the basis of the report or contesting the findings after a hearing. The order under appeal flowed from non-compliance with the unappealed consent order of 7th September 2016.
The nature of the dispute before the lower court
The dispute was not about the right to bury the deceased but about proprietary rights to the portion of land where the structure stood and the body was interred
Having evaluated the affidavit evidence on the notice of motion, the Surveyor's report and the record, the court found the real contest concerned legal proprietary rights and entitlement to use the land on which the structure and grave were placed - a land dispute within the exclusive realm of the Environment and Land jurisdiction, not a burial-dispute matter.
Legal principles established
#- When a court's jurisdiction is questioned, the issue must be determined before any other matter, as without jurisdiction the court must down its tools
- A magistrate not gazetted to handle Environment and Land cases lacks jurisdiction over such disputes
Court orders
#- 1.All proceedings in Siaya PMCC No.50 of 2016 between 17th August 2016 and 5th October 2016 and the orders made thereof by Hon. Mr. T.M. Olando, Resident Magistrate, are set aside
- 2.The parties to take steps without undue delay to have Siaya PMCC No.50 of 2016 mentioned for directions before a duly gazetted Magistrate with jurisdiction at Siaya Law Courts
- 3.Costs in the appeal to abide the outcome of Siaya PMCC No.50 of 2016
- On appeal from
- Siaya Principal Magistrate's Court
- Siaya PMCC No.50 of 2016
- Jurisdiction invoked
- Appeal to the Environment and Land Court from subordinate court; subordinate court jurisdiction under Article 169(3) of the Constitution, Section 9 of the Magistrates' Courts Act No.26 of 2015 and Section 26(3) of the Environment and Land Court Act No.19 of 2011 as amended
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Ngaya Odanga v Dickson Otieno Kogwang [2018] KEELC 4431 (KLR)", Case Analysis (2018). ELC Appeal (Siaya); appeal against order of 5th October 2016 in Siaya PMCC No.50 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4431/eng@2018-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.