[2017] KEELC 845 (KLR)
The application to transfer the suit from the Magistrates' Court to the Environment and Land Court was premised on the assertion that Magistrates' Courts lacked jurisdiction over land matters following the High Court's judgment in Malindi High Court Petition No. 3 of 2016. However, at the time of the application,...
Source-derived case information.
- Citation
- [2017] KEELC 845 (KLR)
- Parties
- Plaintiff: John Kaito Logiel Etagan; Defendant: Imuro Lokoppu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 6 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate's Court to Environment and Land Court
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Jurisdiction of Magistrates Courts, Transfer of Suits, Environment and Land Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kaito Logiel Etagan
Plaintiff
Imuro Lokoppu
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit From Magistrate's Court to Environment and Land Court
Legal Issues
- 1 Whether the Magistrates' Courts have jurisdiction to hear and determine land disputes commenced before the establishment of the Environment and Land Court.
- 2 Whether the application to transfer Lodwar CMCC No. 2B of 2012 to the Environment and Land Court at Kitale is merited in light of prevailing legal authority.
Ratio Decidendi
The application to transfer the suit from the Magistrates' Court to the Environment and Land Court was premised on the assertion that Magistrates' Courts lacked jurisdiction over land matters following the High Court's judgment in Malindi High Court Petition No. 3 of 2016. However, at the time of the application, the Court of Appeal had issued a stay of that judgment, thereby maintaining the pre-existing legal position and jurisdiction of the Magistrates' Courts. Subsequently, the Court of Appeal determined in Civil Appeal No. 287 of 2016 that Parliament is empowered to confer jurisdiction on Magistrates' Courts to hear and determine land and environment disputes, and set aside the High...
Court Disposition
application dismissed
Orders
- The application dated 7/4/2017 is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
MISC.APP. NO. 6 OF 2017
JOHN KAITO LOGIEL ETAGAN................PLAINTIFF
VERSUS
IMURO LOKOPPU.................................DEFENDANT
R U L I N G
1. The application dated 7/4/2017 seeks the following orders:-
(1) That an order be issued directing LODWAR CMCC NO. 2B of 2012 to be withdrawn for trial in the Environment & Land Court at Kitale.
(2) That the costs of this application be provided for.
2. The application is based on among others, the ground that the dispute in the lower court relates to land, and there is need to transfer the same to the Environment and Land Court for hearing and determination. It is said that the Magistrate’s Courts ceased to have jurisdiction over land matters following the judgment in Malindi High Court Petition No. 3 of 2016 – Malindi Law Society –vs- A.G. and 4 Others.
3. However this court is aware that there at the time the application was being made there was a stay of judgment mentioned above. The Court of Appeal issued a stay of that judgment. What does a stay mean? It means that the situation that pre-existed that judgment still obtains.
4. There was therefore no good reason for the applicants to state very conclusively that the Magistrates’ Courts have no jurisdiction in respect of any matters commenced before the Environment and Land Court was established under the new constitution.
5. As this ruling was being prepared the court of appeal gave its decision in Civil Appeal Number 287 of 2016– The Law Society Of Kenya –vs- Malindi Law Society And Others in which the main question was whether it is within the power of Parliament to confer by legislation jurisdiction on Magistrates’ Courts to hear and determine disputes relating to the environment and the use and occupation of, and title to, land.
6. In that decision, it was found that Parliament has such power, and the judgement of the High Court declaring among others, Sections 26(3)and(4) of the ELC Act,and Sections 9 (a)and(b) of the Magistrates Court Act 2015 unconstitutional was set aside. This application is therefore, but for the observation in paragraphs 3 and 4 herein above I have made earlier, completely overtaken by events.
7. I therefore find that the application dated 7/4/2017 has no merit and the same is hereby dismissed with no orders as to costs.
Dated, signed and delivered at Kitale on this 30th day of October, 2017.
MWANGI NJOROGE
JUDGE
30/10/2017
Coram before Mwangi Njoroge Judge
Court Assistant – Isabellah/Picoty
Ms. Sitati for plaintiff
Ms. Mufutu holding brief for Oduor for respondent
COURT
Ruling read in open court in the presence of the counsel for the parties.
MWANGI NJOROGE
JUDGE
30/10/2017