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ELCPartially AllowedCivil Appeal (from Bungoma Senior Principal Magistrate's Civil Suit No 437 of 2001; appeal filed 11th August 2010)· [2020] KEELC 602 (KLR)

Timothy Wekesa Mulupi v Masasabi Wabule & 2 others [2020] KEELC 602 (KLR)

Environment and Land Court of Kenya at Bungoma
19 November 2020
1,639 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that magistrates can decide land trust claims, sending this 19-year-old Bungoma family land dispute back for a full hearing.

What this practically means

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Executive summary

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This is a first appeal (originally filed in the High Court on 11th August 2010 and transferred to this Court on 9th November 2018) against a judgment of 14th July 2010 by Hon P Achieng, Resident Magistrate, in Bungoma Senior Principal Magistrate's Civil Suit No 437 of 2001. The amended plaint sought a declaration that the defendant holds 5 acres comprised in title NO KIMILILI/KIMILILI/561 in trust for the plaintiff, an order for transfer, and in default execution by the Executive Officer. The defendant denied the claim and counterclaimed eviction as a trespasser. The trial Magistrate declined to evaluate the evidence, holding that the orders sought would interfere with existing title and that the court lacked jurisdiction under the Registered Land Act Cap 300, dismissing the suit with costs. On appeal, Boaz N. Olao, J, determined the matter on ground one challenging jurisdiction. The court held that the trial Magistrate had pecuniary jurisdiction: the reference to twenty-five thousand pounds in Section 159 of the repealed Registered Land Act equated to Kshs 500,000/=, well above the value of the 5 acres purchased in 1971 for Kshs 2,000/=. Applying Madan JA's decision in Paul Muthuita v Wanoe, the court further held that a Resident Magistrate's jurisdiction under Section 159 was as wide as the High Court's and included power to declare a trust. Both parties had admitted the trial court's jurisdiction, and there was no basis for declining it. Allowing the appeal, the court set aside the judgment of 14th July 2010 and all subsequent orders, remitted the suit to the Chief Magistrate Bungoma for directions and final disposal, directed an expedited hearing, and awarded the appellant costs of the appeal and in the court below.

Key legal issues

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01

Whether the trial Magistrate had pecuniary jurisdiction over the claim

Holding

The trial Magistrate had the necessary pecuniary jurisdiction; the reference to twenty-five thousand pounds in Section 159 of the repealed Registered Land Act equals Kshs 500,000, well above the value of the 5 acres purchased for Kshs 2,000 in 1971

Reasoning

Section 159 of the repealed Registered Land Act conferred jurisdiction on the Resident Magistrate's Court where the value of the subject matter did not exceed twenty-five thousand pounds. The court construed the reference to pounds as the Kenyan pound of twenty shillings, pegging the RM's pecuniary jurisdiction at Kshs 500,000/=. The 5 acres out of KIMILILI/KIMILILI/561, purchased in 1971 for Kshs 2,000/=, fell well within that limit.

p. 2
02

Whether a Resident Magistrate may declare a trust over registered land

Holding

Yes. Citing Paul Muthuita v Wanoe (Madan JA), the Resident Magistrate's jurisdiction under Section 159 was as wide as that of the High Court, including jurisdiction to declare a trust

Reasoning

The trial Magistrate declined jurisdiction on the view that the orders sought would interfere with or cancel existing title. The court, applying Madan JA's decision in Paul Muthuita v Wanoe, held that where a magistrate has jurisdiction under Section 159 by value or location, that jurisdiction equals the High Court's and extends to declaring trusts over registered land. The trial Magistrate thus erred in law and fact in declining jurisdiction over the trust claim.

p. 3
03

Whether the trial court could raise jurisdiction suo motu in the circumstances

Holding

While a trial court may raise jurisdiction sua sponte, there was no basis for the conclusion that there was no jurisdiction; both parties had admitted the trial court's jurisdiction in their pleadings

Reasoning

Both the plaintiff and the defendant admitted the jurisdiction of the trial court in their respective pleadings. Although nothing prevents a court from raising jurisdiction suo motu, the trial Magistrate gave no basis for declining it, leaving the dispute unresolved on the merits and necessitating remittal for hearing and final disposal.

p. 3

Legal principles established

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  • Where a Resident Magistrate has jurisdiction under Section 159 of the Registered Land Act by virtue of the value or location of the subject matter, that jurisdiction is as wide as that of the High Court and includes jurisdiction to declare the existence of a trust over registered land
  • A claim based on trust over registered land is justiciable by a magistrate's court within its pecuniary jurisdiction notwithstanding the Registered Land Act

Court orders

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  1. 1.The Judgment dated 14th July 2010 and all subsequent orders flowing therefrom are set aside
  2. 2.Bungoma Senior Principal Magistrate's Civil Suit No 437 of 2001 be placed before the Chief Magistrate Bungoma on 23rd November 2020 for directions as to hearing and final disposal before that Court
  3. 3.In view of the age of the case, the hearing be expedited
  4. 4.The Appellant shall have costs of the appeal and in the Court below

Authorities

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Legislation

  • Registered Land Act (repealed)Section 159
  • Registered Land Act (repealed)Cap 300
  • Land Disputes Tribunal ActSection 3(1)

Cases cited (1)

  • PAUL MUTHUITA .V. WANOE
    C.A CIVIL APPEAL No 12 of 1982 [1982 eKLR]
On appeal from
Bungoma Senior Principal Magistrate's Court
Civil Suit No 437 of 2001
Jurisdiction invoked
First appellate jurisdiction over appeals from subordinate courts in land disputes (transferred from the High Court to this Court on 9th November 2018); no specific provision cited in the judgment

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, "Timothy Wekesa Mulupi v Masasabi Wabule & 2 others [2020] KEELC 602 (KLR)", Case Analysis (2020). Civil Appeal (from Bungoma Senior Principal Magistrate's Civil Suit No 437 of 2001; appeal filed 11th August 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/602/eng@2020-11-19

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