Nicholas Benard & Another v Margaret Aoro Adongo & 7 Others

LAND REGISTRAR- KISUMU………….…………………..7TH RESPONDENT ATTORNEY GENERAL………………………………….…..8TH RESPONDENT (Being an appeal from the Ruling and Orders of Hon. E.A. Obina (SPM) delivered on 4th April 2024 in Kisumu CMCELC No. E018 of 2022) JUDGMENT The parties have not included in the Record of Appeal the pleadings filed in the lower court. What I give herein as the background to the dispute between the parties is what I can gather from the material on record. The same are not from the pleadings. The 1 st Respondent filed a suit against the Appellants and the 2 nd to 8th Respondents at the Chief Magistrate’s Court at Kisumu, namely, CMCELC No. E018 of 2022 (lower court). The 1st Respondent averred that at all material times she was the registered owner of all those parcels of land known as Title No. Kisumu/Ojola/4410 and Title No. Kisumu/Ojola/4411. The 1st Respondent averred that the 2nd, 3rd, 4th and 5th Respondents illegally and fraudulently caused Title No. Kisumu/Ojola/4410 to be registered in their names, subdivided the same and sold portions thereof, namely, Title Nos. Title No. Kisumu/Ojola/4973-4977 to the ELCLA CASE E022 OF 2024 JUDGMENT Page 2

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Appellants. The 6th Respondent was accused of illegally and fraudulently causing Title No. Kisumu/Ojola/4411 to be registered in his name. The Appellants filed a defence averring that they purchased land parcels, Title Nos. Title No. Kisumu/Ojola/4973-4977 in a public auction which was conducted by Eshikoni Auctioneers on 12 th February 2020 pursuant to warrants of sale issued in the Chief Magistrate’s Court at Eldoret, in CMCC No. 307 of 2017. The Appellants averred that they purchased the properties at Kshs. 2,000,000/- and the same were vested in them through an order made on 2nd July 2021 by the Chief Magistrate’s Court at Eldoret in the same suit in which the warrants of sale had been issued. The Appellants contended that the 1 st Respondent’s suit was time-barred and that the lower court had no jurisdiction to hear and determine the same. On 10th July 2023, the Appellants filed a Notice of Motion application of the same date seeking an order striking out the 1 st Respondent’s suit for want of jurisdiction. The Appellants’ application was based on the grounds on the face thereof and on the affidavit of the 1 st Appellant sworn on 10th July 2023. The Appellants averred that they ELCLA CASE E022 OF 2024 JUDGMENT Page 3

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acquired titles to land parcels, Title Nos. Title No. Kisumu/Ojola/49734977 pursuant to the orders made by Hon. Linus Poghon Kassan(CM) at the Chief Magistrate’s Court at Eldoret in CMCC No. 307 of 2017. The Appellants averred that the lower court suit, which was being presided over by a Senior Principal Magistrate, lacked jurisdiction to overturn the orders of the Chief Magistrate in Eldoret. The Appellants averred that the lower court was bound by the orders of the Chief Magistrate’s Court at Eldoret. The Appellants averred that they were the lawful owners of land parcels, Title Nos. Title No. Kisumu/Ojola/4973-4977(suit properties), which they purchased at a public auction sale conducted on 12 th February 2020 and sanctioned by the Chief Magistrate's Court at Eldoret, which subsequently vested the said parcels of land in them through an order made on 2 nd July 2021. The Appellants averred that under the doctrine of stare decisis and the hierarchy of courts in the Republic of Kenya, the lower court could not vary or overturn the orders and directives given by the Chief Magistrate’s Court, but was instead bound by such orders and directives. The Appellants averred that the lower court lacked jurisdiction to hear and determine a suit challenging the orders issued ELCLA CASE E022 OF 2024 JUDGMENT Page 4

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by the Chief Magistrate's Court at Eldoret, which vested the ownership of the suit properties in them. The Appellants’ application was opposed by the 1 st Respondent through Grounds of Opposition dated 14th August 2023. The 1st Respondent averred that the application was an abuse of the court process and was intended to create legal chaos, morass, elevate costs unnecessarily and waste precious judicial time. The 1 st Respondent further averred that the Appellants had failed to meet the threshold for grant of the orders for striking out the suit. The 1 st Respondent averred that the Appellants had misapprehended and misapplied the principle of stare decisis. The 1st Respondent averred that the Appellants had misapprehended the entire suit as presented by the 1st Respondent against the Appellants and the 2 nd- 8th Respondents. The 1st Respondent averred that the application was incompetent, frivolous and misconceived and ought to be dismissed with costs. The parties argued the application through written submissions. In its ruling dated 4th April 2024, the lower court found that the parties before the Chief Magistrate’s Court at Eldoret were different from ELCLA CASE E022 OF 2024 JUDGMENT Page 5

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those in the lower court suit, and that the issues in the two cases were likewise distinct. The lower court stated that, apart from the vesting order and the certificate of sale produced by the Appellants, no other material was presented to clarify the nature of the Eldoret case. The lower court stated that the suit before it concerned a land ownership dispute in which the 1 st Respondent claimed ownership of the suit properties, a claim disputed by the Appellants and the 2 nd-6th Respondents. The court stated that the Appellants would have an opportunity to put forward their defence at the hearing of the suit on the merits. The lower court held that, in the circumstances, only the doctrine of res judicata could oust its jurisdiction, not the principle of stare decisis. The Appellants’ application dated 10 th July 2023 was therefore dismissed with costs. The Appellants were aggrieved by the lower court's decision and preferred the present appeal. In their Memorandum of Appeal dated 29th April 2024, the Appellants challenged the lower court’s ruling on the following grounds: 1. That the learned trial Magistrate erred in law and fact in finding that the Chief Magistrate’s Court and the Resident Magistrate’s ELCLA CASE E022 OF 2024 JUDGMENT Page 6

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Court are courts of equal status and therefore a Resident Magistrate’s Court can overturn the orders or judgment of a Chief Magistrate's Court. 2. That the learned trial Magistrate erred in law and fact in finding that the trial Magistrate had jurisdiction to overturn a vesting order issued by the Chief Magistrate’s Court sitting at Eldoret, Hon. Linus Poghon Kassan, and also overturn a public auction sale sanctioned by the Chief Magistrate's Court sitting at Eldoret. 3. That the learned trial Magistrate erred in law and fact in failing to analyse and evaluate the evidence presented before the court and instead relying on extraneous matters to reach its ruling. 4. That the learned trial Magistrate erred in law and fact in making a finding on issues that were not part of the pleadings and were not issues meant for determination in the application before the trial court, thus occasioning a miscarriage of justice. 5. That the learned Magistrate erred in law and fact in finding that in Kenya there is no hierarchy of courts, that the Chief Magistrate’s Court is of equal status and jurisdiction with the Principal Magistrate’s Court and the Resident Magistrate’s Court. ELCLA CASE E022 OF 2024 JUDGMENT Page 7

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The Appellants prayed that the appeal be allowed and the lower court's ruling be set aside for lack of jurisdiction. The appeal was argued by way of written submissions. The Appellants and the 1 st Respondent filed submissions, while the 2nd-8th Respondents failed to do so. The Appellants’ Submissions: The Appellants filed submissions dated 23rd May 2025. The Appellants framed two issues for determination, which are: whether the trial Magistrate erred in law and fact in finding that the Chief Magistrate's Court and the Senior Principal Magistrate’s Court are of equal status in the hierarchy of courts within the Republic of Kenya; and whether the trial Magistrate erred in law and fact in finding that a Senior Principal Magistrate can overturn or set aside the judgment or orders of a Chief Magistrate. The Appellants reiterated that the public auction at which they purchased the suit properties was sanctioned by the Chief Magistrate’s Court at Eldoret and that the presiding magistrate Hon. Linus Poghon Kassan (CM) issued a vesting order in their favour on the basis of which they were registered as the owners of the suit properties. ELCLA CASE E022 OF 2024 JUDGMENT Page 8

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The Appellants submitted that the Chief Magistrate's Court is of superior jurisdiction both pecuniary and geographically and that the Senior Principal Magistrate’s Court is below the Chief Magistrate's Court; that the decisions of a Chief Magistrate's Court are binding on a Senior Principal Magistrate's Court; and that a Senior Principal Magistrate cannot purport to set aside or overturn or even vacate or vary the judgment, orders, rulings of a Chief Magistrate. The Appellants submitted that the decisions or orders of the Chief Magistrate’s Court are binding on all courts that fall below it, including the Senior Principal Magistrate’s Court. The Appellants submitted that the trial magistrate's ruling lacked consistency in that, having stated that the Chief Magistrate's Court and other subordinate courts are of equal status, none can overturn the decisions, findings, or orders of another. The 1st Respondent’s Submissions: The 1st Respondent filed submissions dated 18th September 2025. The 1st Respondent framed the following issues for determination: whether the magistrates’ courts are courts of equal status; whether the doctrine of stare decisis is applicable to magistrates’ courts’ ELCLA CASE E022 OF 2024 JUDGMENT Page 9

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decisions; whether the appeal is meritorious; and who should bear the costs of the appeal. On the first issue, the 1 st Respondent submitted that Article 162 of the Constitution of Kenya, 2010, establishes a hierarchical system of courts comprising the superior courts and subordinate courts; that the superior courts include the Supreme Court, the Court of Appeal, the High Court and the courts of equal status with the High Court(Environment and Land Court and Employment and Labour Relations Court), while the subordinate courts include Magistrates’ Courts, Kadhi’s court, Court Martial or any other tribunal established by an Act of Parliament; and that the constitutional underpinning entrenches the magistrates’ courts at the same level as other subordinate courts but below the Superior Courts in the judicial hierarchy. The 1st Respondent submitted that section 7 of the Magistrates’ Courts Act confers pecuniary jurisdiction upon magistrates’ courts based on the value of the subject matter and does not elevate one magistrates’ court above the other in status, and it therefore implies that magistrates’ courts, while being at the same judicial level, possess varying pecuniary jurisdiction. The 1 st ELCLA CASE E022 OF 2024 JUDGMENT Page 10

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Respondent submitted that magistrates’ courts are lower courts operating at the same status. On the second issue, the 1 st Respondent submitted that the doctrine of stare decisis dictates that the decisions of the higher courts are binding on the lower courts to ensure consistency, predictability and stability in the administration of justice. The 1 st Respondent submitted that it is trite law that the High Court is bound by the decisions of superior courts such as the Court of Appeal and the Supreme Court, but not necessarily by courts of the same status or lower courts; and that similarly, magistrates’ courts, being subordinate courts, are bound by the decisions of the superior courts but are not bound by decisions of other magistrates' courts or tribunals. The 1 st Respondent relied on the cases of Republic v. Ochieng & Another; Mbago [2025] eKLR and SGS Kenya Limited v. Energy Regulatory Commission & 2 others [2020] eKLR in support of this submission. The 1st Respondent submitted that while superior courts’ decisions are binding on the subordinate courts (lower courts), subordinate courts and tribunals must retain flexibility to consider the unique circumstances of each case. The 1st Respondent further submitted that magistrates’ courts must adhere to the doctrine of stare decisis strictly in relation to the ELCLA CASE E022 OF 2024 JUDGMENT Page 11

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decisions of the High Court, Environment and Land Courts, Employment and Labour Relations Courts, Court of Appeal and the Supreme Court but not the decisions of subordinate courts. On the third issue, the 1st Respondent submitted that the appeal lacked merit and ought to be dismissed. On costs, the 1 st Respondent urged the court to observe the principle that costs follow the event when exercising its discretion on the award of costs, and the said discretion should be exercised judiciously pursuant to Section 27(1) of the Civil Procedure Act, Cap. 21 Laws of Kenya. Analysis and Determination I have considered the proceedings of the lower court, the ruling of the court, the grounds of appeal by the Appellants and the submissions by the Appellants and the 1 st Respondent. I am of the view that the appeal raises only two issues for determination by this Court, namely, whether the doctrine of stare decisis is applicable to the magistrates’ court decisions; and whether the appeal should be allowed. I will consider the two issues together. The magistrates' courts are established under Article 169(1) (a) of the Constitution of Kenya 2010. The preamble to the Magistrates’ Courts ELCLA CASE E022 OF 2024 JUDGMENT Page 12

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Act 2015 provides that it is “An ACT of Parliament to give effect to Articles 23(2) and 169(1)(a) and (2) of the Constitution; to confer jurisdiction, functions and powers on the magistrates’ courts; to provide for the procedure of the magistrates’ courts, and for connected ppurposes.” Sections 5 and 7 of the Magistrates’ Courts Act provides as follows: “5. A magistrate's court shall be subordinate to the High Court and shall be duly constituted when presided over by a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate.” “7. (1) A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed— (a) twenty million shillings, where the court is presided over by a chief magistrate; (b) fifteen million shillings, where the court is presided over by a senior principal magistrate; (c) ten million shillings, where the court is presided over by a principal magistrate; ELCLA CASE E022 OF 2024 JUDGMENT Page 13

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(d) seven million shillings, where the court is presided over by a senior resident magistrate; or (e) five million shillings, where the court is presided over by a resident magistrate. (2) The Chief Justice may from time to time, by notice in the Gazette, revise the pecuniary limits of jurisdiction set out in subsection (1), taking into account inflation and change in prevailing economic conditions.” In the case of Dutch Flower Group Kenya Limited v. Commissioner of Domestic Taxes (Income Tax Appeal E095 of 2022) [2025] KEHC 12581 (KLR) (Commercial and Tax) (16 September 2025) (Judgment), the court stated as follows: “14. The doctrine of stare decisis is, however, applicable. It is a constitutional imperative under Article 163(7) that all courts are bound by the decisions of the Supreme Court. By extension, lower courts are bound by the decisions of the higher courts (vertical stare decisis) and courts of concurrent jurisdiction are expected, as a matter of judicial comity and for the sake of legal certainty, to follow each other’s decisions (horizontal stare decisis) unless there is a compelling reason to depart. ELCLA CASE E022 OF 2024 JUDGMENT Page 14

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15. William M. Lileet al., in Brief Making and the Use of Law Books, 321 (3rd edition 1914) on the doctrine of stare decisis, states that – “The rule of adherence to judicial precedents finds its expression in the doctrine of stare decisis. This doctrine is simply that, when a point or principle of law has been once officially decided or settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same tribunal, or by those which are bound to follow its adjudications, unless it be for urgent reasons and in exceptional cases.” The Supreme Court in the case of Asanyo & 3 others v. AttorneyGeneral (Petition 7 of 2019) [2020] KESC 62 (KLR) (10 January 2020) (Judgment) stated as follows: “ [28] In Dodhia v National & Grindlays Bank Limited and Another [1970] EA 195, Duffus, V.P. expounded the principle of stare decisis stating that; “The adherence to the principle of judicial precedent or stare decisis is of utmost importance in the administration of justice in the Courts in East Africa, and thus to the conduct of the everyday affairs of its inhabitant; it provides a degree of certainty as to what is the law of the country, and is a ELCLA CASE E022 OF 2024 JUDGMENT Page 15

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basis on which individuals can regulate their behaviour and transactions as between themselves and also with the State. There can be no doubt that the principle of judicial precedent must be strictly adhered to by the High Courts of each of the States and that these courts must regard themselves as bound by the decision of the Court of Appeal on any question of law, just as in the former days the Court of Appeal was bound by a decision of the Privy Council, or in England as the Court of Appeal or the High Courts are bound by the decisions of the House of Lords, and of course, similarly the magistrates courts or any other inferior court in each State are bound on questions of law by the decisions of the Court of Appeal and, subject to these decisions, also to the decisions of the High Court in the particular State.” I agree with the 1 st Respondent that the Constitution establishes the Magistrates’ Courts. It does not establish Resident Magistrates’ Courts, Senior Resident Magistrates’ Courts, Principal Magistrates’ Courts, Senior Principal Magistrates’ Courts and the Chief Magistrates’ Courts. Chief Magistrate, Senior Principal Magistrate, Principal Magistrate, Senior Resident Magistrate and Resident Magistrate are ranks conferred upon the magistrates presiding over Magistrates’ Courts. It follows, therefore, that in terms of our judicial hierarchy, the ELCLA CASE E022 OF 2024 JUDGMENT Page 16

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Chief Magistrate, Senior Principal Magistrate, Principal Magistrate, Senior Resident Magistrate and Resident Magistrate are at the same level. Being at the same level, none is bound by the decision of the other, as argued by the Appellants before the lower court and this court. The doctrine of stare decisis does not therefore apply in that regard. I find no merit in the argument by the Appellants that the Chief Magistrate’s Court at Eldoret is superior to the Senior Principal Magistrate’s Court at Kisumu and that the latter court is bound by the decision of the former. In the lower court case that gave rise to the present appeal, the 1st Respondent sued the Appellants together with the 2nd-8th Respondents, claiming that she had been fraudulently dispossessed of the suit properties and land parcel Title No. Kisumu/Ojola/4411, by the Appellants and the 2 nd to 6th Respondents. The 1st Respondent produced copies of the extracts of the registers for Title No. Kisumu/Ojola/4410 (which gave rise to the suit properties) and Title No. Kisumu/Ojola/4411, which showed that she was the first registered owner of the properties. The Appellants had in their defence contended that they acquired the suit properties lawfully at a court-sanctioned public auction and that the properties ELCLA CASE E022 OF 2024 JUDGMENT Page 17

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were vested in them by the Chief Magistrate’s Court at Eldoret. Whether the Appellants acquired the suit properties lawfully was an issue for the lower court to determine. As observed by the lower court, what was placed before the court by the Appellants was a certificate of sale said to have been issued by Eshikoni Auctioneers confirming that the Appellants were the purchasers of the suit property at a public auction held on 12th February 2020, and an order said to have been issued by the Chief Magistrate’s Court at Eldoret in Eldoret CMCC No. 307 of 2017 vesting the suit properties upon the Appellants. These documents are uncertified. No other information was provided about what the Eldoret case concerned. As the lower court correctly observed, the Appellants had filed their defence and would have their day in court to explain how they acquired the suit properties. The issue of the lower court overturning the order of the Chief Magistrate’s Court at Eldoret should have come at the tail end, after the court had heard the suit and, from the evidence, made a finding one way or the other. The mere allegation by the Appellants that they acquired the suit properties claimed by the 1st Respondent through a court-sanctioned auction and that the properties were vested in them by the Chief Magistrate’s Court at ELCLA CASE E022 OF 2024 JUDGMENT Page 18

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Eldoret without more was not sufficient to warrant the lower court summarily striking out the 1st Respondent’s suit. The lower court had jurisdiction to interrogate the existence of the alleged auction and the vesting order. That could only be done at the trial. Even if the doctrine of stare decisis were to apply, I wonder how the lower court would have been bound by the alleged orders of the Chief Magistrate's Court at Eldoret, whose validity it had not verified. It is my finding that the doctrine of stare decisis was wrongly raised. The issue, in my view, should have been whether the lower court, being a court of the same status as the Chief Magistrate’s Court at Eldoret, had jurisdiction to interfere with the orders allegedly issued by the Chief Magistrate's Court at Eldoret. Even if this issue could be raised, the Appellants could raise it only at trial, after proving that they acquired the suit property at a public auction ordered by the Chief Magistrate's Court at Eldoret and that that court vested the property in them. At that point, the lower court would have then considered whether the 1st Respondent should have joined the Eldoret case to challenge the sale or filed a fresh suit. This being an interlocutory appeal, I do not wish to say more. Conclusion ELCLA CASE E022 OF 2024 JUDGMENT Page 19

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In the final analysis and for the foregoing reasons, I find no merit in the appeal before the court. The appeal is dismissed with costs to the 1st Respondent. Written and signed at Mombasa by S. OKONG’O JUDGE Delivered, dated and countersigned at Kisumu on this day of September 28 th 2026 E.K.WABWOTO JUDGE Judgment delivered virtually through Microsoft Teams Video Platform in the presence of: N/A for the Appellants Mr. Okoth for the 1 st Respondent Joanne Omondi -Court Assistant ELCLA CASE E022 OF 2024 JUDGMENT Page 20

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