[2016] KEHC 5002 (KLR)
The court held that it is the responsibility of the court handling the matter—in this case, the Magistrates Court—to make a determination on whether it has jurisdiction to hear and determine the suit. The referral of the question to the High Court judge for directions was improper. The Magistrates Court must first...
Source-derived case information.
- Citation
- [2016] KEHC 5002 (KLR)
- Parties
- Plaintiff: Julius K. Kirui; Defendant: Veronica Chelangat Kibanga
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 20 of 2016
- Procedural Posture
- Civil Suit / Ruling on Jurisdictional Directions
- Outcome
- Directions issued to Magistrates Court to determine its own jurisdiction.
- Judges
- MA Silau
- Legal Topics
- Jurisdiction of Magistrates Court, Interlocutory Injunctions, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius K. Kirui
Plaintiff
Veronica Chelangat Kibanga
Defendant
Procedural Posture
Civil Suit / Ruling on Jurisdictional Directions
Legal Issues
- 1 Whether the Magistrates Court has jurisdiction to hear and determine land and environment matters.
- 2 Whether it was proper for the Magistrate to refer the question of jurisdiction to the High Court judge for directions.
Ratio Decidendi
The court held that it is the responsibility of the court handling the matter—in this case, the Magistrates Court—to make a determination on whether it has jurisdiction to hear and determine the suit. The referral of the question to the High Court judge for directions was improper. The Magistrates Court must first address the jurisdictional objection raised by the parties, and its determination on the issue is subject to appeal. The judge therefore directed the Principal Magistrate to proceed to make a determination on the question of jurisdiction.
Court Disposition
Directions issued to Magistrates Court to determine its own jurisdiction.
Orders
- The Principal Magistrate is directed to make a determination on whether or not the Magistrates Court has jurisdiction to hear and determine the suit.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT KERICHO
CIVIL SUIT NO. 20 OF 2016
JULIUS K. KIRUI.................................................PLAINTIFF
VERSUS
VERONICA CHELANGAT KIBANGA.............DEFENDANT
RULING/DIRECTIONS
(Suit filed in Magistrates Court; suit touching on a land matter; objection to jurisdiction; Magistrate referring the matter to the judge for directions; directions issued that the Magistrates Court does make a determination on the question of jurisdiction which determination can, if need be, subjected to appeal)
This suit was commenced on 28 January 2016 before the Chief Magistrate's Court at Kericho. The main prayer in the plaint is for an injunction to restrain the defendant from the land parcel Kericho/Kipchimchim/163 which the plaintiff claims to own. Together with the suit, the plaintiff did file an application for an interlocutory injunction, seeking to restrain the defendant from the suit property pending hearing and determination of the suit.
The respondent did file a response to the said application and the application was argued inter partes before the Honourable J.R. Ndururi Principal Magistrate. One of the points argued in the application was whether or not the court had jurisdiction to entertain the suit. In a ruling delivered on 12 April 2016, the learned Principal Magistrate held that in light of the orders made in Malindi High Court Constitutional Petition No. 3 of 2016, it was not clear whether or not magistrates had jurisdiction to handle matters related to land and environment and thus not clear whether the court could determine the application for injunction. The learned Principal Magistrate then referred the matter to me for directions.
I invited both Mr. Orina for the plaintiff and Mr. Koko for the defendant to make submissions. Mr. Koko submitted that it was wrong for the learned Principal Magistrate to refer the matter to me for directions and ought to have made a ruling on whether or not the court had jurisdiction. Mr. Orina was of a contrary view and was of opinion that there was nothing wrong in the Magistrate asking for directions in the manner that he did.
I have considered the matter. Once a question of jurisdiction is raised by a party, it falls upon the court handling the matter to make a determination on whether or not it has jurisdiction. If it holds that it has no jurisdiction, then the court must down its tools. If it holds that there is jurisdiction, then the court will proceed to handle the matter. It is upon the court handling the matter to determine the question of jurisdiction. That determination is of course appealable by any of the parties, subject to any requirements for leave.
My direction therefore is that the court handling the matter does proceed to make a determination on whether or not it has jurisdiction.
That is my direction to the learned Principal Magistrate.
Dated, Signed and delivered on this 29th day of April, 2016
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
PRESENT:
Ms. Chelimo for Plaintiff
Mr. Koko for defendant
Court Assistant: Mr. Kenei