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ELCOtherEnvironment and Land Case Civil Suit 107 of 2022· [2023] KEELC 21339 (KLR)

Keiwua & 2 others v Nduti & another (Trading as by his Grace Enterprises)

Environment and Land Court
2 November 2023
LKLC Komingoi
931 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court confirmed that land disputes worth under Kshs. 20 million belong in the Magistrate's Court, not the Environment and Land Court.

What this practically means

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Executive summary

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The plaintiffs sued the defendants seeking specific performance of a plot purchase agreement (for which they paid Kshs. 4,305,000), or alternatively a refund with interest and a 10% penalty under the Law Society of Kenya conditions of sale adopted in the agreement, plus costs and interest. The defendants filed a notice of preliminary objection dated 30th May 2023 on three grounds: that the suit offended Section 11 of the Civil Procedure Act; that Sections 26(3) and (4) of the Environment and Land Court Act and Section 9(a) of the Magistrate's Courts Act clothed duly gazetted magistrates with pecuniary jurisdiction to handle the suit; and that the plaintiffs were guilty of forum shopping. The parties consented to canvass the objection by written submissions. Relying on Section 7(1) of the Magistrate's Courts Act (civil jurisdiction up to twenty million shillings) and on Peter Mburu v Andrew Kimani Adam & 2 others, the court held that the Environment and Land Court Act did not oust the jurisdiction of subordinate courts over land disputes within their pecuniary jurisdiction, noting the 2015 amendments to Section 150 of the Land Act and Section 26(3) of the ELC Act. The court found the suit ought to have been filed in the Magistrate's Court and transferred it to the Chief Magistrate's Court Kajiado for hearing and determination, with mention on 13th November 2023. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Environment and Land Court has exclusive jurisdiction over land disputes regardless of value

Holding

No; magistrates' courts duly gazetted retain jurisdiction over land disputes within their pecuniary jurisdiction

Reasoning

The court relied on Section 7(1) of the Magistrate's Courts Act conferring civil jurisdiction up to twenty million shillings, and on the amendment of Section 150 of the Land Act and insertion of Section 26(3) of the ELC Act empowering the Chief Justice to appoint magistrates to preside over environment and land cases. The ELC's appellate jurisdiction presupposes subordinate courts hearing land matters in the first instance.

p. 2
02

Whether the plaintiffs were guilty of forum shopping

Holding

Effectively upheld by transfer of the suit to the Magistrate's Court as the proper forum

Reasoning

The court found the suit ought to have been filed in the Magistrate's Court given the subject matter value, and rather than striking it out, transferred it to the Chief Magistrate's Court Kajiado, consistent with the objection's grounds on forum shopping and jurisdiction.

p. 3

Legal principles established

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  • The enactment of the Environment and Land Court Act did not oust the jurisdiction of subordinate courts to hear land disputes where the value of the subject matter falls within their pecuniary jurisdiction

Court orders

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  1. 1.The suit is transferred to the Chief Magistrate's Court Kajiado for hearing and determination
  2. 2.The suit shall be mentioned before the Chief Magistrate's Court Kajiado on 13th November 2023 for further orders
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure ActSection 11
  • Environment and Land Court Act, 2011Section 26(3) and (4)
  • Environment and Land Court Act, 2011Section 13(1)
  • Magistrate's Courts Act, 2015Section 9(a)
  • Magistrate's Courts Act, 2015Section 7(1)
  • Land Act, 2012Section 150
  • Statute Law (Miscellaneous Amendments) Act No. 25 of 2015amendment of Section 150, Land Act and insertion of Section 26(3), ELC Act
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (1)

  • Peter Mburu v Andrew Kimani Adam & 2 others
    (2016) eKLR

    Subordinate courts retain jurisdiction over land disputes where subject matter value falls within their pecuniary jurisdiction

Jurisdiction invoked
Environment and Land Court Act, Section 26(3) and (4); Magistrate's Courts Act, Section 9(a) and 7(1); Civil Procedure Act, Section 11

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, "Keiwua & 2 others v Nduti & another (Trading as by his Grace Enterprises)", Case Analysis (2023). Environment and Land Case Civil Suit 107 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21339/eng@2023-11-02

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