Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Appeal (Thika) - Memorandum of Appeal dated 23rd September 2020· [2021] KEELC 1635 (KLR)

Teresia Wanjiru Mbugua v Moses Gikonyo Hiram [2021] KEELC 1635 (KLR)

Environment and Land Court
8 October 2021
LGL. Gacheru
3,638 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

A Kenyan court threw out an entire land case because the magistrate's court had no legal power to hear it, even years after judgment.

What this practically means

#

Executive summary

#
The Appellant, Teresiah Wanjiru Mbugua, was the 2nd Defendant in Thika Chief Magistrates Court ELC Case No. 336 of 2012, in which the Respondent, Moses Gikonyo Hiram, was the Plaintiff. An ex parte judgment and decree were entered against her on 11th October 2013 after the court found she had been served. Her application dated 1st September 2016 seeking to summon the process server for cross-examination, set aside the decree and be allowed to file a defence was dismissed by Hon. A.M. Maina on 15th September 2020, prompting this first appeal. The Appellant argued that the process server's affidavit should have been tested by cross-examination, that an affidavit by Alexander Ochwo Alela postdating the judgment could not prove knowledge of the suit, and, principally, that the magistrates' court lacked jurisdiction over a land suit filed on 9th May 2012, before the 2016 amendment conferring jurisdiction on magistrates' courts, and that the Chief Justice's Practice Directions of 25th July 2014 could not cure that deficiency. The Respondent relied on the Practice Directions and contended there was a presumption of regular service and inexcusable delay. The court, applying Selle v Associated Motor Boat Co. as a first appeal, framed two issues: the magistrates' court's jurisdiction and the merit of the appeal. Holding that jurisdiction flows only from the Constitution or statute and that Practice Directions cannot confer it, the court found the trial proceedings and judgment null and void ab initio, allowed the appeal, set aside the judgment and orders, and struck out the suit for want of jurisdiction. No express costs order was made.

Key legal issues

#
01

Whether the Magistrates Court had jurisdiction over the land suit filed on 9th May 2012

Holding

The magistrates' court lacked jurisdiction; only the Environment and Land Court was vested with jurisdiction over the matter at the time of filing.

Reasoning

The suit was filed on 9th May 2012 when the Land Registration Act 2012 defined the competent court as the Environment and Land Court established under the Environment and Land Court Act 2011. The 2016 amendment empowering magistrates' courts did not apply retrospectively. Practice Directions issued by the Chief Justice could not confer jurisdiction since jurisdiction flows only from the Constitution or statute, so the proceedings and judgment were nullities ab initio.

p. 5
02

Whether the appeal is merited

Holding

The appeal was allowed because the underlying proceedings were a nullity for want of jurisdiction, rendering the ruling dismissing the application to set aside the decree unsustainable.

Reasoning

Having found that the trial court lacked jurisdiction and that its judgment and subsequent orders were null and void ab initio, the court held that the ruling dismissing the appellant's application to set aside the ex parte decree could not stand. Consequently, the judgment, orders and the entire suit were struck out for want of jurisdiction.

p. 5

Legal principles established

#
  • A suit filed in 2012 relating to title to land, before the 2016 amendment widening magistrates' jurisdiction, could only be heard by the Environment and Land Court; magistrates' courts lacked jurisdiction and such proceedings are null and void ab initio.
  • Practice Directions issued by the Chief Justice cannot confer jurisdiction; jurisdiction flows only from the Constitution or statute.
  • Jurisdiction can be raised at any stage of the proceedings, even for the first time on appeal.

Court orders

#
  1. 1.The judgment and subsequent orders of the trial court are set aside as null and void ab initio
  2. 2.The suit at the lower court is struck out for want of jurisdiction
  3. 3.The appeal is allowed in so far as the trial court did not have jurisdiction

Authorities

#

Legislation

  • Penal CodeSections 91 and 320
  • Land Registration ActSection 2
  • Environment and Land Court ActSection 2; Section 30
  • Registered Land ActSection 159

Cases cited (8)

  • Selle -vs- Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif -v- Ali Mohamed Sholan
    (1955) 22 E.A.C.A. 270
  • Kenya Ports Authority …vs… Modern Holdings [E.A] Limited
    [2017] eKLR
  • Adero & Another …Vs.. Ulinzi Sacco Society Limited
    [2002] 1 KLR 577
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & another
    null
  • John K. Malembi ….Vs… Trufosa Cheredi Mudembei & 2 others
    [2019] eKLR
  • Nyoro Construction Company Limited…Vs… Prashnth Projects Ltd & Another
    (2015) eKLR
  • OWNERS OF THE MOTOR VESSES "LILLIANS" V CALTEX OIL (KENYA) LTD
    null
On appeal from
Chief Magistrates Court at Thika
ELC Case No. 336 of 2012
Jurisdiction invoked
Article 162(2)(b) jurisdiction vesting in the Environment and Land Court; Environment and Land Court Act, 2011 (Section 2, Section 30 transitional provision); Land Registration Act, 2012

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Teresia Wanjiru Mbugua v Moses Gikonyo Hiram [2021] KEELC 1635 (KLR)", Case Analysis (2021). ELC Appeal (Thika) - Memorandum of Appeal dated 23rd September 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1635/eng@2021-10-08

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