Malick Upande v Nickson Sembe Barasa [2019] KEELC 60 (KLR)
The bottom line
#The Environment and Land Court confirmed that magistrates' courts can decide land cases and dismissed the landowner's appeal, ordering him to pay costs.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the magistrates' court over land matters
The trial magistrate had jurisdiction to entertain the land matter, as the 2015 amendments (Environment and Land Court Act, Land Registration Act, Land Act and Magistrates' Courts Act) clothed subordinate courts with jurisdiction over title-to-land disputes within pecuniary limits
The court considered the Law Society of Kenya v Malindi Law Society decision, which had struck down as unconstitutional the conferral of land jurisdiction on subordinate courts. However, Parliament thereafter enacted the Statute Law (Miscellaneous Amendments) Act, 2015 and the Magistrates' Courts Act, 2015, amending the ELC Act and land statutes to confer jurisdiction on magistrates' courts. Accordingly, the magistrate's court had jurisdiction at the time it entertained the matter, and ground three of the appeal failed.
Sub judice claim based on pending Succession Cause No. 473 of 2007 and alleged fraud
The sub judice ground was not established; the matter before the trial magistrate was one of title to land and no evidence of fraud was adduced
The appellant argued the suit was premature because Succession Cause No. 473 of 2007 was pending, meaning the respondent's title was fraudulent or not genuine. The court found no evidence of fraud was adduced and that the dispute before the trial magistrate concerned title to land. The trial magistrate had held the lease was valid as between the defendant and DW2 as contract inter partes and had no effect on the plaintiff's title.
Appellate interference with findings of fact
The court declined to interfere with the trial court's findings, which were judiciously arrived at on cogent evidence
Following Mwanasokoni v Kenya Bus Service, the appellate court is duty bound to revisit and evaluate the evidence and reach its own decision, but will not interfere with findings of fact unless they were based on no evidence, on a misapprehension of the evidence, or on demonstrably wrong principles. The court found the decision was judiciously arrived at and the award was based on cogent evidence, so no basis for interference existed.
Legal principles established
#- Parliament may by legislation confer jurisdiction on magistrates' courts to hear and determine disputes relating to environment and land; after the 2015 amendments magistrates' courts had jurisdiction over land matters within pecuniary limits
- An appellate court will not ordinarily interfere with findings of fact of the trial court unless based on no evidence, on misapprehension of it, or on demonstrably wrong principles
Court orders
#- 1.The appeal is dismissed for lack of merit
- 2.The appellant to meet the costs of the appeal
- On appeal from
- Chief Magistrate's Court at Kakamega
- CMCC No. 146 of 2010
- Jurisdiction invoked
- Appeal to the Environment and Land Court under section 26(5) of the Environment and Land Court Act as amended, appeals lying from designated magistrates' courts; Article 162(2)(b) of the Constitution considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malick Upande v Nickson Sembe Barasa [2019] KEELC 60 (KLR)", Case Analysis (2019). ELCA No. 45 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/60/eng@2019-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.