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ELRCDismissedNotice of Motion dated 15 January 2014 in Environment and Land Court at Nakuru (seeking transfer of Nakuru Chief Magistrate's Civil Suit No. 1183 of 2009)· [2016] KEELRC 781 (KLR)

Elijah Komen Katya v Chebii Chemjor [2016] KEELRC 781 (KLR)

Environment and Land Court
12 July 2016
MSMunyao Sila
1,035 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The ELC dismissed a bid to move a 2009 land case to it, confirming that suits filed before the ELC existed can stay where they were filed.

What this practically means

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Executive summary

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The applicant, plaintiff in Nakuru Chief Magistrate's Civil Suit No. 1183 of 2009, moved the Environment and Land Court at Nakuru by notice of motion dated 15 January 2014 seeking transfer of that suit to the ELC. He argued, on advice of his advocates, that only the ELC has jurisdiction over claims for adverse possession. The respondent filed nothing and did not appear. Munyao Sila J dismissed the application. First, the court found the suit was not actually one for adverse possession: the plaint pleaded purchase of shares in land from Kalenjin Enterprises and sought subdivision of Dundori/Mugwathi Block 2/131 (Koilel) into 3 acres for the applicant and 1.5 acres for the defendant. Second, the suit was filed in October 2009, before the ELC was created by the 2010 Constitution promulgated on 29 August 2010. Under section 159 of the Registered Land Act (now repealed), land disputes registered under that Act were triable by the High Court, or by the Resident Magistrate's Court where the subject matter did not exceed Kshs. 500,000/=. The dispute fell outside the Land Disputes Tribunal's jurisdiction under section 3(1) of that Act, and the applicant did not show the claim exceeded the monetary threshold, so the Magistrate's Court had jurisdiction when the suit was filed. Third, the court held that matters filed in courts of competent jurisdiction before the ELC's establishment need not be transferred unless the law prescribes so, and the applicant pointed to no such law. The application was dismissed with no orders as to costs, it being unopposed.

Key legal issues

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01

Nature of the suit sought to be transferred

Holding

The suit was not one for adverse possession as claimed; it was a claim for subdivision of land purchased through shares in Kalenjin Enterprises

Reasoning

The court examined the plaint annexed to the supporting affidavit and found the applicant pleaded purchase of shares in land and sought subdivision, not adverse possession. The applicant's stated basis for transfer therefore did not correspond with the pleadings.

p. 1
02

Jurisdiction of the Magistrate's Court in 2009

Holding

In 2009, before the ELC existed, land disputes under the Registered Land Act could be filed in the Magistrate's Court where the subject matter did not exceed Kshs. 500,000/=, and the applicant did not demonstrate the dispute exceeded that value

Reasoning

The court relied on section 159 of the Registered Land Act (then in force) allowing Resident Magistrate's Court jurisdiction for registered land disputes below the monetary threshold, and found the dispute fell outside the Land Disputes Tribunal's mandate, leaving the applicant free to file in the Magistrate's Court.

p. 2
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Effect of the establishment of the ELC on pending suits

Holding

The establishment of the ELC does not require transfer of matters already filed in courts that had jurisdiction when the suit was filed

Reasoning

The court held that transfer is only mandated where the law prescribes it, and no law requires a matter filed in the Magistrate's Court when it had jurisdiction to be moved to the ELC. The applicant cited no such provision.

p. 2

Legal principles established

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  • Matters filed in courts of competent jurisdiction before the establishment of the Environment and Land Court need not be transferred to the ELC unless the law so prescribes

Court orders

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  1. 1.The application dated 15 January 2014 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Registered Land ActSection 159
  • Land Registration Act(repealing provision referenced)
  • Land Disputes Tribunal ActSection 3(1) and 3(3)
  • Environment and Land Court Act(repeal of Land Disputes Tribunal Act referenced)
  • Constitution of Kenya, 2010(establishment of Environment and Land Court referenced)
Jurisdiction invoked
Environment and Land Court Act; article 162(2) Constitution (ELC as creature of the 2010 Constitution)

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, "Elijah Komen Katya v Chebii Chemjor [2016] KEELRC 781 (KLR)", Case Analysis (2016). Notice of Motion dated 15 January 2014 in Environment and Land Court at Nakuru (seeking transfer of Nakuru Chief Magistrate's Civil Suit No. 1183 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/781/eng@2016-07-12

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