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ELCOtherNot stated in the judgment (Notice of motion dated 19th March 2020, amended 27th July 2020)· [2021] KEELC 4154 (KLR)

Daniel Mwita Magaiwa v Maroa Rioba Magige & another [2021] KEELC 4154 (KLR)

Environment and Land Court of Kenya
23 February 2021
GOG.M.A. Ongondo
1,248 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court postponed deciding a family land partition dispute until it reviews records from two earlier related cases, urging the parties to try mediation first.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Migori (G.M.A. Ongondo, J) dealt with a notice of motion dated 19th March 2020, amended on 27th July 2020, by the applicant Daniel Mwita Magaiwa, a tenant in common of LR Bukira/Bwisaboka/155 measuring approximately 113 hectares. He sought orders directing the Land Registrar, Kehancha to partition the parcel notwithstanding the absence of the respondents' consent, and directing the OCS Kehancha Police Station to supervise implementation, relying on Articles 50 and 159(2)(b) of the Constitution, sections 1A, 1B and 3B of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and section 94 of the Land Registration Act. The respondents, Maroa Rioba Magige and Rioba Burume, opposed the application, contending inter alia that the court lacked jurisdiction, that no application for partition had been made to the Land Registrar, that Migori ELCC No. 793 of 2017 was pending and likely to dispose of the matter, and that a decree in Kehancha RM's Court LDT No. 20 of 2006 showed the dispute had already been determined. The court noted the statutory framework on co-tenancy and partition, addressed the jurisdictional objection by citing authority that jurisdiction flows from the Constitution or statute, and rather than granting or dismissing the application, directed the Deputy Registrar to call for the records of the two related cases and fixed the application for further consideration alongside them, while encouraging the parties to attempt ADR. Directions were set for 18th May 2021. No costs order was made.

Key legal issues

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01

Jurisdiction over partition of land held by tenants in common

Holding

The court entertained the jurisdictional doubt but did not conclusively determine it, instead deferring the application pending retrieval of records in related cases

Reasoning

The respondents disputed the court's jurisdiction. The court cited the Supreme Court in Samwel Kamau Macharia that jurisdiction derives from the Constitution or statute, noted section 94 of the Land Registration Act governs partition of land occupied by tenants in common, and elected to consider the application alongside Migori ELCC No. 793 of 2017 and Kehancha LDT No. 20 of 2006 rather than rule on the merits or the objection.

p. 2
02

Existence of related pending and concluded proceedings

Holding

The court directed retrieval of the record of Migori ELCC No. 793 of 2017 and the decree in Kehancha PM's Court LDT No. 20 of 2006 before further consideration

Reasoning

The 1st respondent deposed that Migori ELCC No. 793 of 2017 was pending and likely to dispose of the matter, and attached a decree from Kehancha RM's Court LDT No. 20 of 2006 suggesting the dispute was already determined. The court found it just to call for those records and consider the application alongside them.

p. 2

Legal principles established

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  • Jurisdiction of a court or tribunal flows from either the Constitution or legislation or both

Court orders

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  1. 1.The Deputy Registrar of the Court to urgently call for original records and certified copies of proceedings and findings in Migori ELCC No. 793 of 2017 and Kehancha PM's Court LDT No. 20 of 2006 and notify the parties
  2. 2.The application to be considered further alongside the other two cases to meet the ends of justice
  3. 3.Parties encouraged to attempt ADR
  4. 4.Matter fixed for directions on 18th May 2021

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 40(1), 48, 50(1), 60(1)(g), 159(2)(b), 159(2)(c), 6(3)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 1A, 1B, 3, 3A, 3B
  • Civil Procedure RulesOrder 51
  • Land Registration Act No. 3 of 2012Sections 91, 92, 94, 95
  • Environment and Land Court Act, 2015Sections 3, 20

Cases cited (3)

  • Samwel Kamau Macharia and another =vs= Kenya Commercial Bank Ltd and others
    (2012) eKLR
  • In Re-ltebtulla Properties Ltd
    (1976-80) 1 KLR 1195
  • Republic =vs= Jubilee Party and another Ex-parte Wanjiku Muhia and another
    (2017) eKLR
Jurisdiction invoked
Articles 50, 159(2)(b), 60(1)(g) of the Constitution; sections 1A, 1B, 3B of the Civil Procedure Act; Order 51 of the Civil Procedure Rules; section 94 of the Land Registration Act; section 3 of the Environment and Land Court Act

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, "Daniel Mwita Magaiwa v Maroa Rioba Magige & another [2021] KEELC 4154 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of motion dated 19th March 2020, amended 27th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4154/eng@2021-02-23

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