Jane Omollo Jectone alias Jenipher Odoyo Olango & 3 others v Nixon Otieno Bogo sued on behalf of Tom Onyango Bugo (Deceased) & 2 others [2020] KEELC 578 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the magistrates' court over land disputes and of the ELC over the instant adverse possession suit
The Ndhiwa PM's court has jurisdiction over both the suit pending there and the present adverse possession suit; the ELC also has jurisdiction to grant preservation orders
Section 9 of the Magistrates' Courts Act, 2015 read with section 26(3) and (4) of the ELC Act donates jurisdiction to magistrates' courts over environment and land matters. Section 11 of the CPA requires suits to be filed in the lowest grade competent court. The ELC retains power to grant preservation orders under section 13(7)(a) of the ELC Act, but since the PM's court is competent, duplication should be avoided.
Stay of proceedings under section 6 of the Civil Procedure Act
Although two matters concerning the same property and overlapping parties are pending in two courts, stay of the PM's court case was not granted; instead the later suit was transferred to that court
The plaintiff in the Ndhiwa PM's case is the 1st defendant in the instant suit and the property in dispute is the same. Section 6 CPA governs stay of suit. Rather than stay the earlier-filed and competent PM's court suit, the court transferred the present originating summons to that court for consolidated and expeditious determination, avoiding simultaneous hearings.
Whether temporary injunction should issue
No injunction granted because a temporary injunction is already in force in the Ndhiwa PM's court case between the same parties over the same land
The 1st respondent deposed that he filed the Ndhiwa suit first and obtained a temporary injunction still in force. The court held that granting a parallel injunction would duplicate existing relief; the applicants' application therefore failed to justify further preservative orders from this court.
Legal principles established
#- A court's jurisdiction flows from the Constitution or legislation or both
- Under section 9 of the Magistrates' Courts Act and section 26(3) and (4) of the ELC Act, magistrates' courts have jurisdiction to hear and determine environment and land cases
Court orders
#- 1.The notice of motion dated 4th August 2020 by the plaintiffs/applicants is disallowed with costs in the cause
- 2.The suit originated by originating summons dated 4th August 2020 is transferred to Ndhiwa Principal Magistrate's court for hearing and determination
- 3.Mention before the Principal Magistrate at Ndhiwa Law courts for directions on 17th February 2021
- Jurisdiction invoked
- Sections 13, 19(2) and 26(3) and (4) of the Environment and Land Court Act; Civil Procedure Act; Articles 50 and 159 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Omollo Jectone alias Jenipher Odoyo Olango & 3 others v Nixon Otieno Bogo sued on behalf of Tom Onyango Bugo (Deceased) & 2 others [2020] KEELC 578 (KLR)", Case Analysis (2020). Not stated in judgment (Originating Summons dated 4th August 2020, Migori ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/578/eng@2020-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.