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ELCPartially AllowedELC Appeal (Kerugoya) from PMCC No. 299 of 2013· [2019] KEELC 684 (KLR)

Monica Njoki Gathumbi v George Muchira Gathumbi [2019] KEELC 684 (KLR)

Environment and Land Court
8 November 2019
1,847 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kerugoya land appeal succeeded because the magistrate lacked jurisdiction to hear the case, so the whole dispute must now be retried from scratch.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kerugoya against the judgment of Hon. Andayi W. Francis (Chief Magistrate) in PMCC No. 299 of 2013, delivered on 19th May 2016. The appellant, who had been the plaintiff, had sought a declaration that she was the legal owner of land parcel KABARE/NGIROCHE/454, eviction of the respondent and a permanent injunction. The trial court dismissed her claim, cancelled her registration as sole proprietor, cancelled a deceased father's death certificate issued to her, reinstated a caution, cancelled the joint registration with Gatumbi Gatonge (deceased) and ordered the title to revert to the deceased. The appellant raised eight grounds, principally that the Chief Magistrate lacked jurisdiction over an Environment and Land dispute when he delivered judgment, and that he framed and determined un-pleaded issues. The appeal was canvassed by written submissions. E.C. Cherono, ELC Judge, restated the duties of a first appellate court citing Selle v Associated Motor Boat Co Ltd and Kenya Power & Lighting Co Ltd v E.K.O., but found it unnecessary to address the remaining grounds because the jurisdictional ground succeeded: the High Court in Malindi Law Society v Attorney General had quashed Gazette Notice No. 1472 of 1:3:2016 which gazetted magistrates to hear land disputes under Section 26(3) of the ELC Act, and the Court of Appeal only reinstated the notice on 9th October 2017, after the trial judgment. The court therefore allowed the appeal, remitted the trial court file for retrial before any other magistrate and directed mention before the Chief Magistrate Kerugoya on 26th November 2019.

Key legal issues

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Jurisdiction of the Chief Magistrate to determine an Environment and Land dispute on 19th May 2016

Holding

The Chief Magistrate lacked jurisdiction between 19/2/2014 and 19/5/2016 because Gazette Notice No. 1472 of 1:3:2016 had been quashed by the High Court in Malindi Law Society v Attorney General & 4 others; the Court of Appeal only reinstated it on 9th October 2017, after judgment had been delivered.

Reasoning

The trial was heard and determined between February 2014 and May 2016, a period during which the High Court had quashed the gazette notice gazetting magistrates to hear land disputes. Since the gazettement was the source of the magistrate's jurisdiction under Section 26(3) of the ELC Act, its quashing rendered the proceedings a nullity. The Court of Appeal's reinstatement of the notice came only in October 2017, after the trial judgment. The jurisdictional ground therefore succeeded and the file was remitted for retrial.

p. 3
02

Duty of a first appellate court

Holding

The first appellate court must reconsider and re-evaluate the whole evidence and draw its own conclusions, while giving due allowance to the trial court's advantage of seeing and hearing the witnesses.

Reasoning

Relying on Selle v Associated Motor Boat Co Ltd and Kenya Power & Lighting Co Ltd v E.K.O., the court restated the settled principles for first appeals: the appeal proceeds by way of retrial, the appellate court evaluates the evidence itself, makes allowances for not having seen witnesses, and does not overturn findings merely because it would have reached a different result. These principles framed the court's approach before it addressed jurisdiction.

p. 2

Legal principles established

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  • A first appellate court must re-evaluate the evidence afresh while making due allowance for not having seen or heard the witnesses.
  • Quashing of Gazette Notice No. 1472 of 1:3:2016 by the High Court deprived magistrates of jurisdiction over Environment and Land disputes during the relevant period.
  • Where a trial is conducted without jurisdiction, the appropriate remedy is a retrial before a court of competent jurisdiction.

Court orders

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  1. 1.The trial Magistrate's Court file is remitted back for re-trial before any other Magistrate.
  2. 2.Mention before the Chief Magistrate Kerugoya on 26th November 2019 for directions.
On appeal from
Chief Magistrate's Court, Kerugoya
PMCC No. 299 of 2013
Jurisdiction invoked
First appeal under the Environment and Land Court Act; gazettement of magistrates under Section 26(3) of the ELC Act, 2011 (jurisdiction of magistrate courts arising from Article 162(2) of the Constitution, cited in the judgment as 'Section 162 (2)')

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, "Monica Njoki Gathumbi v George Muchira Gathumbi [2019] KEELC 684 (KLR)", Case Analysis (2019). ELC Appeal (Kerugoya) from PMCC No. 299 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/684/eng@2019-11-08

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