[2019] KEELC 2540 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KAKAMEGA

ELCA CASE NO. 41 OF 2017

FRANCIS AGATSIVA ZALWA................................APPELLANT

VERSUS

AGGREY ZALWA AGATSIVA.............................RESPONDENT

JUDGEMENT

The appellant Francis Agatsiva Zalwa being dissatisfied with the judgment and the decree of Grace Mmasi, Ag. Senior Principal Magistrate dated 2nd December, 2014 in SPMCC No. 90 of 2011 appeals to this honourable court on the grounds that:-

1. The learned magistrate erred in law in presiding over a land matter in which she knew as acknowledged in her own judgment that she was bereft of the necessary jurisdiction.

2. The learned magistrate acted in violation of the appellant’s right to representation by a lawyer and more so a lawyer of his own choice when she visited the disputed parcel of land in the absence of the appellant’s lawyer and took evidence which she later relied upon to deliver a judgment which has occasioned gross injustice to the appellant.

3. The learned Magistrate erred in law in ignoring or failing to take into account the evidence adduced before her to the effect that the appellant had been in occupation of the suit land before or from the date of circumcision in the year 1968 which possession created indefeasible proprietory interest to be protected by law.

4. The learned magistrate ought to have given consideration to the manner by which the respondent acquired title to the suit land as sole proprietor to the exclusion of other beneficiaries as ordered by the same court in Succession Cause No. 2 of 1994 which was brought to her attention and arrived at the conclusion that the respondent wasn’t a bonafide title holder of Kakamega/Kedoli/503 and denied the respondent the remedies sought which were equitable.

5. The learned magistrate totally misapprehended the law with regard to the legal effect of title acquired without possession in which case if she had applied the law properly she would have found that the respondent’s acquisition of the disputed title was subject to the appellant’s unregistered proprietory interest therein and the respondent thereby took the title only as trustees.

6. The learned magistrate erred in law and fact in accepting the allegation that the respondent had been given alternative portion of land in Nandi to which he would move once evicted where there was no evidence to support such finding.

7. The judgment of the learned magistrate goes against the weight of evidence.

8. The judgment of the learned magistrate portends gross injustice to the appellant who together with his family have been rendered landless and goes against the accepted principles for grant injunction.

9. In all aspects of the case the learned magistrate did not act judiciously.

The appellant prays for judgment and for orders that:-

a. The appeal be allowed.

b. The decree and or order of the lower court be recalled and vacated or set aside.

c. This honourable court substitutes the decree of the lower court with an order dismissing the respondent’s claim.

d. The costs of this appeal and of the lower court be awarded to the appellant.

The Appellant submitted that the magistrates court did not have jurisdiction as this was a land matter. Secondly the learned Magistrate erred in law by not considering the wait of the evidence and delivering judgement against it. Failure to acknowledge that the appellant had been on the land since 1968 hence the right to adverse possession. Failure of the learned magistrate to put into account the manner of acquisition to the title to the suit land was also an error.

The court has carefully considered the appellant’s submissions in this appeal. The respondent was served but failed to attend court or file any submissions. On ground one of the appeal on lack of jurisdiction the court found as follows: in the case of Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others (2017) eKLR the court held that;

“By parity of reasoning, although under Article 162 (2) of the Constitution Parliament is mandated to establish courts with the status of the High Court to hear and determine disputes relating to employment and labour relations and environment and the use and occupation of, and title, to land, that in itself does not confer an exclusive jurisdiction to those specialized courts to hear and determine the specified types of cases. However, as already stated, Article 165 (5) is clear that the High Court has no jurisdiction in respect of matters falling within the jurisdiction of the specialized courts. Whereas Parliament is empowered to enact legislation to confer jurisdiction to the Magistrates courts to hear and determine disputes stipulated under Article 162 (2) of the Constitution, it cannot establish a Superior Court or confer upon a Superior Court jurisdiction to hear employment and labour relations cases and environment and land cases”.

This court of appeal decision was delivered at Nairobi on 19th day of October, 2017. The trial court magistrate delivered this judgement subject of the appeal on 2nd December 2014. The case was filed in 6th January 2012.

After the enactment by Parliament, The Statute Law (Miscellaneous Amendments) Act, 2015, Act No. 25 of 2015 received Presidential assent on 15th December 2015. Under Section 2 thereof, several laws were amended as indicated in the schedule thereto. Of relevance to this judgment were amendments made to The Environment and Land Court Act, Act No. 19 of 2011(the ELC Act) with a view to conferring on the Chief Justice the mandate to transfer Judges from the specialized courts to the High Court and vice versa, and clothing Magistrates Courts with authority to hear and determine disputes relating to employment and labour relations and the environment and the use and occupation of, and title to, land. The relevant sections are as follows;

“26. Sitting of the Court

(1) The Court shall ensure reasonable and equitable access to its services in all Counties.

(2) A sitting of the Court may be held at such places and at such times, as the Court may deem necessary for the expedient and proper discharge of its functions under this Act.

(3) The Chief Justice may, by notice in the Gazette, appoint certain magistrates to preside over cases involving environment and land matters of any area of the country.

(4) Subject to Article 169(2) of the Constitution, the Magistrate appointed under sub-section (3) shall have jurisdiction and power to handle —

(a) disputes relating to offences defined in any Act of Parliament dealing with environment and land; and

(b) matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates' Courts Act.

(4) Appeals on matters from the designated magistrate's courts shall lie with the Environment and Land Court.”

Amendments were made to Section 101 of the Land Registration Act which was amended by inserting the words “and subordinate courts" immediately after the expression “2011” and Section 150 of the Land Act that was amended by deleting the words “is vested with exclusive jurisdiction” and substituting therefore the words “and the subordinate courts as empowered by any written law shall have jurisdiction.” The Magistrates Courts Act, Act No. 26 of 2015, an Act of Parliament to give effect to Articles 23(2) and 169(1)(a) and (2) of the Constitution was enacted to confer jurisdiction, functions and powers on the magistrates' courts; to provide for the procedure of the magistrates' courts, and for connected purposes. It received Presidential assent on 15th December 2015. It was to commence on 2nd January 2016. Section 9 of that Act deals with claims in employment, labour relations claims; land and environment cases and provides that:

“A magistrate's court shall —

(a) in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (Cap. 12A) and subject to the pecuniary limits under section 7(1), hear and determine claims relating to —

(i) environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;

(ii) compulsory acquisition of land;

(iii) land administration and management;

(iv)public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and

(v) environment and land generally.

(b) in the exercise of the jurisdiction conferred upon it under section 29 of the Industrial Court Act, 2011 (No. 20 of 2011) and subject to the pecuniary limits under section 7(1), hear and determine claims relating to employment and labour relations.”

The appeal Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others (2017) eKLR arose from the judgment of the High Court (Emukule, Chitembwe, Thande, JJ) delivered on 11th November 2016 in which the court decreed that Section 2 of the Statute Law (Miscellaneous Amendments) Act, 2015;

“in relation to the jurisdiction of the subordinate courts, in respect of matters relating to environment and the use, occupation of and title to land is inconsistent with Article 162(2) of the Constitution, and therefore null and void.”

This means that magistrate’s court had jurisdiction at that time to entertain land matters prior to the amendments in 2015 discussed above. The case was filed in October 2013.

On grounds 2 to 9 of the appeal which basically are that, the learned magistrate totally misapprehended the law with regard to the legal effect of title acquired without possession in which case if she had applied the law properly she would have found that the respondent’s acquisition of the disputed title was subject to the appellant’s unregistered proprietary interest therein and the respondent thereby took the title only as trustees. I have perused the record of appeal, the learned Ag. Senior Resident Magistrate in her judgement observed that;

“The evidence tendered by the plaintiff and his witnesses is to the effect that the said parcel of land was transferred to the plaintiff by this courts succession cause number 2 of 1994…”

She went on to state that;

“The other issue the court has to consider is whether or not the defendant has a proprietary interest n the suit land. In the cause of the hearing it came out clearly that the defendant was given a portion of land in Nandi where even his mother had a portion, the status quo is that the disputed land is registered in the name of the plaintiff as the sole proprietor and until and unless the defendant proves that the said title deed which is a first registration was obtained through fraud, the defendant cannot claim to have any proprietary interest in this parcel hence he is a trespasser.”

I find that the respondent obtained title through operation of the law and the appellant never raised any objection in the succession cause. It is in evidence that the entire family participated therein. I find that the learned Ag. Senior Resident Magistrate did not err in law or fact and she analysed the evidence adduced during the trial before rendering her decision. In Mwanasokoni v Kenya Bus Service (1982 - 88) 1 KAR 870, it was held that this court is duty bound to revisit the evidence on record, evaluate it and reach its own decision in the matter. This court however, appreciates that an appellate court will not ordinarily interfere with the findings of fact of the trial court unless they were based on no evidence at all, or on misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings. The court finds that the decision was judiciously arrived at and will not interfere with the same. The court finds no basis to interfere with the award as it was based on cogent evidence. This appeal is dismissed for lack of merit with no orders as to costs as it was undefended.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 3RD JULY 2019.

N.A. MATHEKA

JUDGE