[2017] KEHC 537 (KLR)
The High Court lacks jurisdiction to hear and determine land disputes after the operationalization of the Environment and Land Court, unless specifically permitted by the Chief Justice's Practice Directions. Since the present suit was part-heard before the establishment of the Environment and Land Court but...
Source-derived case information.
- Citation
- [2017] KEHC 537 (KLR)
- Parties
- Plaintiff: Joel Kipkosgei Sigei alias Joel Sigei; Defendant: Peter Maina Macharia
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 346 of 2010
- Procedural Posture
- Civil Case / Ruling on Jurisdiction and Transfer
- Outcome
- Suit transferred to the Environment and Land Court for further directions.
- Judges
- JK Mulwa, CC Kipkorir
- Legal Topics
- Jurisdiction of Courts, Transfer of Suit, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Kipkosgei Sigei alias Joel Sigei
Plaintiff
Peter Maina Macharia
Defendant
Procedural Posture
Civil Case / Ruling on Jurisdiction and Transfer
Legal Issues
- 1 Whether the High Court has jurisdiction to hear and determine the land dispute after the establishment of the Environment and Land Court.
- 2 Whether the proceedings conducted before the High Court after the operationalization of the Environment and Land Court are valid.
Ratio Decidendi
The High Court lacks jurisdiction to hear and determine land disputes after the operationalization of the Environment and Land Court, unless specifically permitted by the Chief Justice's Practice Directions. Since the present suit was part-heard before the establishment of the Environment and Land Court but continued before the High Court after the new court became operational, and without the benefit of the Practice Directions, the High Court must decline jurisdiction. The proper course is to transfer the matter to the Environment and Land Court for further directions, including whether to adopt the evidence already taken or to commence the hearing afresh. The oversight in jurisdiction...
Court Disposition
Suit transferred to the Environment and Land Court for further directions.
Orders
- The suit is transferred to the Environment and Land Court for its dealing.
- Parties to take directions in the Environment and Land Court on whether to adopt the evidence taken before the High Court or to commence the case denovo.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL CASE NUMBER 346 OF 2010
JOEL KIPKOSGEI SIGEI aliasJOEL SIGEI...............PLAINTIFF
VERSUS
PETER MAINA MACHARIA.....................................DEFENDANT
RULING
1. This suit was filed in 2010 before the establishment of the Environment and Land Court by an Act of Parliament No.19 of 2011. The dispute was about ownership of the suit land Nyandarua/Mbuyu/638 and trespass by the defendant.
The suit was partheard by the Honourable Mshilla J from the 25th November 2014 upto the 29th June 2015 when the plaintiff's evidence was taken and its case closed.
2. The Environment and Land Court started its operations in 2012. The said court has exclusive original and appellate jurisdiction to hear and determine all land disputes.- See Section 13 of the Act, Cap 12 A.
When Honourable Mshila J was transferred from this station in 2015, I took over the hearing of the suit and the Defendants (DW and DW2) testified before me.
Parties then proceeded to file their submissions. They are on record. At the time, I had not realised that the case had been partheard prior to the establishment and operations of the Environment and Land Court court as stated above. Had it been the case,The Chief Justices Practice Directions Gazetted as No. 5178 on the 25th July 2014would have clothed me with jurisdiction to proceed with the hearing and finalization of the case. As a High Court Judge, I have no Jurisdiction to touch any case on a land dispute, unless subject to the Chief Justice's directions alluded to above.
3. I observed that J. Mshila Judge before whom the plaintiffs case was heard, with great respect, being a High Court Judge had no jurisdiction to start to hear the land dispute, after the Environmental and Land Court became operational.
Now that I have realised my Constitutional limitations, I must down my tools, though too late in the day. See the Owners of Motor Vessel “LilianS” -vs- Caltex Oil Kenya (1989) KLR 1.
4. Consequently, I transfer the suit to the Environment and Land Court for its dealing.
I direct parties to take directions in the Environment and Land Court on the way forward, that is to say, whether to have the evidence taken before the High Court adopted, or for the start of the case denovo, the Environment and Land Court Judge will no doubt give the appropriate directions in the circumstances.
This court apologises profusely to the parties for the oversight both by their Advocates, myself and my predecessor Judge Mshilla.
Dated and Signed this 29th Day of September 2017.
J.N. MULWA
JUDGE
Delivered on this 12th Day of October 2017.
R. LAGAT KORIR
JUDGE