Swaleh Hassan & another v Josephine Murungi
The bottom line
#Kenya's Environment and Land Court confirmed magistrates can hear trespass cases, but sent this 20-year-old land dispute back for a fresh trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial magistrate had jurisdiction to hear and determine the appellants' claim for trespass
- 2.Whether the trial court erred in holding that the claim ought to be determined under the Physical Planning Act
- 3.Whether the trial court erred in finding the appellants had established an infringed right yet dismissing their claim
Key legal issues
#Whether the trial magistrate had jurisdiction over the trespass claim
The trial court erred; the claim was one for trespass seeking injunction, within the magistrate's jurisdiction under Section 9(a) of the Magistrates' Courts Act, and not one to be determined under the Physical Planning Act
The court analysed Article 162(2)(b), Section 13 of the Environment and Land Court Act and Section 9(a) of the Magistrates' Courts Act, concluding gazetted magistrates with pecuniary jurisdiction may hear land occupation and title disputes. The claim was for trespass and injunction, not a physical planning enforcement matter, so the trial court's reliance on the Physical Planning Act route was misplaced.
Whether the liaison committee appeal route under the Physical Planning Act ousted the court's jurisdiction
No - as at June 19, 2020 the Liaison Committee had not been established, and Section 93 of the Physical and Land Use Planning Act, 2019 confers jurisdiction on the Environment and Land Court in such circumstances
The court took judicial notice that the Liaison Committee was not operational at the material time. Section 93 of the Physical and Land Use Planning Act, 2019 provides that before establishment of the National and County liaison committees, all physical and land use planning disputes shall be heard by the Environment and Land Court. The appellants were therefore right to pursue redress in court.
Whether the trial court erred in dismissing the claim despite finding an infringed right
Yes - the trial court found the appellants' right infringed but dismissed the claim for lack of expert evidence, yet the survey plan had been produced in evidence
The trial court acknowledged the appellants' right over the suit property but dismissed the suit because the plaintiff was the sole witness and no expert witness established the extent of encroachment. The appellate court held this was erroneous since the survey plan was produced in court as evidence (PEXH-6), making the dismissal against the weight of the evidence.
Legal principles established
#- Jurisdiction is central to litigation; a court cannot validly take any step without jurisdiction
- Gazetted magistrates with requisite pecuniary jurisdiction can hear cases involving occupation of and title to land
- Where physical and land use planning liaison committees have not been established, the Environment and Land Court has jurisdiction over such disputes
Court orders
#- 1.The appeal be allowed and the judgment delivered by Hon. E. Makori on June 19, 2020 be set aside
- 2.The matter be heard afresh before any other Magistrate
- 3.Costs of the appeal be awarded to the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court at Mombasa
- Mombasa CMCC No 2090 of 2000
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011 (appellate jurisdiction over magistrates' courts under Section 26 and the Magistrates' Courts Act, 2015)
Relief refused
#Substitution of the trial court's judgment with a judgment allowing the appellants' suit
The court instead ordered a fresh hearing before another magistrate rather than determining the trespass claim itself
Costs
Costs of this appeal be awarded to the appellants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In any litigation, jurisdiction is central. A court of law cannot validly take any step without jurisdiction.
Jurisdiction is everything. Without it, a court has no power to make one more step.
I find that the Trial Court erred in law and in fact in holding that the claim filed by the Appellants ought to be determined pursuant to the Physical Planning Act as this is a claim for trespass seeking orders of injunction.
1. The appeal herein be allowed and set aside the judgment delivered herein by Hon. E. Makori on June 19, 2020. 2. That this matter be heard afresh before any other Magistrate. 3. Costs of this appeal be awarded to the appellants.
Issues in the judgment
#Judgment refers to 'the defendant floated the process under the physical planning act' though the respondent was the objector; also inconsistent naming of Ali Bin Nguma/Ali Gona left unresolved
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Swaleh Hassan & another v Josephine Murungi", Case Analysis (2023). Environment and Land Appeal 35 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16380/eng@2023-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.