Faustino Mundigi v Simon Munyi Muturio [2020] KEELC 3720 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the trial magistrate
The trial magistrate had no jurisdiction to entertain the suit because he was not gazetted under Section 26(3) of the Environment and Land Court Act at the time of judgment; the resulting judgment was a nullity.
Article 162(2)(b) and the Environment and Land Court Act vest jurisdiction over environment and land matters in the ELC, but Section 26(3) permits the Chief Justice to gazette magistrates to handle such matters. Gazette Notice No. 1472 of 11 March 2016 did not include Hon. V.O. Nyakundi; he was only gazetted on 8 December 2017, after the judgment of 22 November 2017. The gazettement did not operate retrospectively.
Retrial in the interests of justice
A fresh trial before a court of competent jurisdiction was ordered, as parties have a right to be heard by a competent court under Article 48.
By parity of reasoning with National Bank of Kenya v Thomas Owen Ondieki, where there is no valid judgment on record a retrial may be ordered. The court held the parties have a right to be heard by a court of competent jurisdiction, an indispensable component of the right of access to justice under Article 48, and declined to comment on the remaining grounds to avoid prejudicing the fresh hearing.
Legal principles established
#- A magistrate's jurisdiction over environment and land matters is conditional upon gazettement by the Chief Justice under Section 26(3) of the Environment and Land Court Act; a judgment delivered before gazettement is a nullity, and subsequent gazettement does not operate retrospectively.
- A retrial may be ordered where there is no valid judgment, as where proceedings were conducted without jurisdiction.
Court orders
#- 1.The Appellant's appeal be and is hereby allowed
- 2.The judgement and decree of Hon. V.O. Nyakundi dated 22nd November 2017 together with all consequential orders are hereby set aside
- 3.The matter is hereby remitted to the Chief Magistrates' Court for hearing de novo before a court of competent jurisdiction
- 4.Each party shall bear his own costs both before this court and the Magistrate's Court
- On appeal from
- Chief Magistrates' Court at Embu
- Embu CMCC No. 118 of 2014
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 26(3) of the Environment and Land Court Act, 2011 (first-instance appeal from magistrates' court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Faustino Mundigi v Simon Munyi Muturio [2020] KEELC 3720 (KLR)", Case Analysis (2020). E.L.C. Appeal No. 1 of 2019 (Formerly HCA No. 72 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3720/eng@2020-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.