[2018] KEELC 3059 (KLR)
The court found that the value of the suit property (Kshs. 1.5 million) falls within the pecuniary jurisdiction of the Magistrates' Court and that the subject matter—land held under customary tenure—is within the jurisdiction of the lower court as provided by Section 7(3)(a) of the Magistrates Courts Act, 2015. The...
Source-derived case information.
- Citation
- [2018] KEELC 3059 (KLR)
- Parties
- Applicant: Bernard Wambu Ndegwa; Respondent: Charles Ndegwa Muchoki; Respondent: John Gikandi Ndegwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 35 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- Application allowed; suit transferred to Karatina Senior Principal Magistrate's Court.
- Judges
- L Waithaka
- Legal Topics
- Transfer of Suit, Magistrates Court Jurisdiction, Customary Land Tenure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Wambu Ndegwa
Applicant
Charles Ndegwa Muchoki
Respondent
John Gikandi Ndegwa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the Environment and Land Court should transfer the suit to the Karatina Senior Principal Magistrate's Court for hearing and determination.
- 2 Whether the Magistrates Court has jurisdiction to hear and determine the suit concerning land held under customary tenure.
Ratio Decidendi
The court found that the value of the suit property (Kshs. 1.5 million) falls within the pecuniary jurisdiction of the Magistrates' Court and that the subject matter—land held under customary tenure—is within the jurisdiction of the lower court as provided by Section 7(3)(a) of the Magistrates Courts Act, 2015. The court also considered the directions of the High Court requiring the applicant to seek transfer for expeditious disposal. Consequently, the Environment and Land Court determined that it was appropriate and lawful to transfer the suit to the Karatina Senior Principal Magistrate's Court for hearing and determination.
Court Disposition
Application allowed; suit transferred to Karatina Senior Principal Magistrate's Court.
Orders
- The file is transferred to Karatina Senior Principal Magistrate's Court for hearing and determination.
- Costs of the application will be in the cause.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NYERI
ELC CASE NO. 35 OF 2014
BERNARD WAMBU NDEGWA...........................PLAINTIFF
-VERSUS-
CHARLES NDEGWA MUCHOKI......................DEFENDANT
RULING
1. The application dated 22nd February, 2018 seeks the following orders:-
1. Service of this application in the first instance be dispensed with and the application be heard exparte.
2. This court do transfer this case to Karatina Senior Principal Magistrate’s Court for hearing and determination.
3. Costs be provided for.
2. The application is premised on the grounds that the suit property is situated in Karatina and is valued at Kshs.1. 5 million; that the applicants reside in Karatina and no prejudice will be suffered by any of the parties if the matter is heard and determined by that court.
3. The application is supported by the affidavit of Bernard Wambu Ndegwa where the grounds in the application are reiterated. In addition, it is deposed that there is a Succession Cause No. 482 of 2012 pending in Nyeri High Court which suit was stayed until this suit is heard and determined; that directions were given by the High court on 21st February, 2018 directing the applicant to file an application seeking transfer of this matter to Karatina Senior Principal Magistrate’s court for speedy disposal of the suit within 30 days, failing which, the court would vacate the orders for stay.
4. The application is opposed vide a replying affidavit sworn by the respondents on 29th March, 2018. They depose that no sufficient ground has been offered warranting the transfer.
5. In the case of Malindi Law Society vs Attorney General and 4 others (2016)eKLR in Malindi Constitutional Petition Case No. 3 of 2016, Magistrates courts were found to have jurisdiction to hear and determine land matters within their pecuniary jurisdiction. The instant suit is one of such matters that fall within the pecuniary jurisdiction of the Magistrates courts. The value of the land is said to be 1. 5 million and is situated in Karatina where the parties reside. The prayers sought in the plaint are for determination of a customary trust which is within the jurisdiction of the lower court. See Section 7(3)(a) of the Magistrates courts Act, 2015 which provides:
”A magistrate’s court shall have jurisdiction in proceedings of a civil nature concerning any of the following under African customary law:
(a) Land held under customary tenure”.
7. Having found the Magistrates courts have jurisdiction to hear and determine the instant case, I hereby transfer the file to Karatina Senior Principal Magistrates court for hearing and determination.
8. Costs of the application will be in the cause.
Dated, signed and delivered in open court at Nyeri this 30th May, 2018.
L N WAITHAKA
JUDGE
Coram:
Bernard Wambu Ndegwa – applicant
Charles Ndegwa Muchoki – 1st respondent
John Gikandi Ndegwa – 2nd respondent
Court assistant - Esther