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ELCPartially AllowedNyahururu Environment and Land Court Appeal (from Nyahururu MC L & E Case No. 264 of 2018)· [2021] KEELC 2926 (KLR)

Charles Ndungu Kahando v Clementine Nyawira Kuria & another [2021] KEELC 2926 (KLR)

Environment and Land Court
10 June 2021
YAY. M. Angima
2,454 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you can file a land case in any magistrates' court within the county where the land sits, then returned this dispute for hearing.

What this practically means

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Executive summary

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This is a first appeal from the ruling of Hon. O. Momanyi (SRM) dated 12th September 2019 in Nyahururu MC L & E Case No. 264 of 2018, by which the trial court upheld the Respondents' preliminary objection on territorial jurisdiction and directed the Appellant to apply for transfer of his land suit to Nanyuki. The underlying suit, filed on 9th April 2018, sought declarations that the Appellant was the registered proprietor of parcel Laikipia/Ngobit Supuko Block II/832 (Wiumiririe), that the Respondents had encroached on it, an order for eviction, a permanent injunction, general damages or mesne profits and costs. The Respondents denied the claim, raised a preliminary objection on territorial jurisdiction, limitation, capacity and res judicata, citing prior Lamuria Land Disputes Tribunal proceedings adopted in Nanyuki Award Case No. 9 of 1999. The appellate court framed two issues: whether the trial court erred in holding it lacked jurisdiction, and costs. Noting that neither party placed any gazette notice, circular or guidelines on territorial jurisdiction before either court, the court took judicial notice that both Nyahururu and Nanyuki Law Courts lie within Laikipia County and, absent directions on distribution of business, held the two courts enjoy concurrent jurisdiction, so a party may elect where to file. The trial court therefore erred in declining jurisdiction. The appeal was allowed, the trial court's ruling set aside, and the preliminary objection dismissed with costs to the Appellant; however, each party was ordered to bear their own costs of the appeal since the appeal arose from the trial court's own error and the dispute remains unheard.

Key legal issues

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01

Whether the Nyahururu Magistrates' Court had territorial jurisdiction over a suit concerning land in Laikipia County

Holding

The trial court erred in declining jurisdiction; the Magistrates' Courts at Nyahururu have jurisdiction concurrent with those at Nanyuki over the suit.

Reasoning

Neither party placed before the trial court or the appellate court any gazette notice, administrative circular or judiciary guidelines on territorial jurisdiction. Taking judicial notice that both Nyahururu and Nanyuki Law Courts are within Laikipia County, and absent any High Court or ELC directions on distribution of business between them, the two courts have concurrent jurisdiction under Sections 5 and 12 of the Civil Procedure Act. A party may therefore elect where to file.

p. 4
02

Whether prior proceedings before the Lamuria Land Disputes Tribunal affected the Nyahururu court's jurisdiction

Holding

No - previous tribunal proceedings could not oust the jurisdiction of the Nyahururu courts under Section 12 of the Civil Procedure Act.

Reasoning

The Respondents argued the dispute had been determined by the Lamuria Land Disputes Tribunal and adopted as judgment in Nanyuki Award Case No. 9 of 1999, rendering the suit res judicata. The court held that even if such previous proceedings existed, they could not affect the jurisdiction of the Nyahururu courts to entertain the suit under Section 12 of the Civil Procedure Act.

p. 4

Legal principles established

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  • Where two magistrates' courts within the same county may entertain a suit over land situate in that county, they have concurrent jurisdiction and a party may elect to file in either.

Court orders

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  1. 1.The appeal be and is hereby allowed.
  2. 2.The ruling and order of the trial court dated 12th September, 2019 declining jurisdiction in Nyahururu MC L & E No. 264 of 2018 be and is hereby set aside.
  3. 3.The Respondents' notice of preliminary objection dated 11th March, 2019 be and is hereby dismissed with costs to the Appellant.
  4. 4.Each party shall bear his own costs of the appeal.

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Section 5
  • Civil Procedure Act (Cap. 21)Section 12
  • Civil Procedure Act (Cap. 21)Section 27 (proviso)

Cases cited (3)

  • David Karobia Kiiru v Charles Nderitu Gitoi and Another
    Nakuru HC Civil Appeal No. 27 of 2016
  • Francis Ndichu Gathogo v Evans Kitazi Ondansa & Another
    [2007] eKLR
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
On appeal from
Chief Magistrate's Court, Nyahururu (Hon. O. Momanyi, SRM)
Nyahururu MC L & E Case No. 264 of 2018
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court ruling (appeal against ruling and order in Nyahururu MC L & E Case No. 264 of 2018)

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, "Charles Ndungu Kahando v Clementine Nyawira Kuria & another [2021] KEELC 2926 (KLR)", Case Analysis (2021). Nyahururu Environment and Land Court Appeal (from Nyahururu MC L & E Case No. 264 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2926/eng@2021-06-10

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