[2017] KEELC 1059 (KLR)
The court found that, following the Court of Appeal's decision in Civil Appeal No. 287 of 2017, subordinate courts now have jurisdiction to hear and determine matters relating to environment, use, occupation, and title to land. The previous High Court decision declaring certain statutory provisions unconstitutional...
Source-derived case information.
- Citation
- [2017] KEELC 1059 (KLR)
- Parties
- Applicant: Lena Mbuli Kilonzo; Respondent: Joshua Mwandikwa & 8 others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 14 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- application dismissed
- Legal Topics
- Jurisdiction of Subordinate Courts, Transfer of Suit, Environment and Land Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lena Mbuli Kilonzo
Applicant
Joshua Mwandikwa & 8 others
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the subordinate court (Mwingi SRMCC) has jurisdiction to hear and determine land disputes after the Court of Appeal decision.
- 2 Whether the suit should be transferred to the Environment and Land Court at Garissa for hearing and determination.
Ratio Decidendi
The court found that, following the Court of Appeal's decision in Civil Appeal No. 287 of 2017, subordinate courts now have jurisdiction to hear and determine matters relating to environment, use, occupation, and title to land. The previous High Court decision declaring certain statutory provisions unconstitutional was set aside, restoring the jurisdiction of subordinate courts in such matters. Consequently, the applicant's argument that only the Environment and Land Court could hear the dispute was no longer tenable. The application to transfer the suit to the ELC at Garissa was therefore dismissed for lack of merit, as the Mwingi Senior Magistrate's Court retained jurisdiction to hear...
Court Disposition
application dismissed
Orders
- The application dated 6th June 2017 is dismissed.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT GARISSA
MISCELLANEOUS APPL. NO. 14 OF 2017
LENA MBULI KILONZO………………………APPLICANT
VERSUS
JOSHUA MWANDIKWA & 8 OTHERS…RESPONDENTS
RULING
The application before me is the Notice of Motion dated 6th June 2017 brought under Section 18 CPA, Article 162 (2) (b) of the Constitution of Kenya 2010. The applicant is seeking the following orders:
1. THAT the suit filed by the applicant against the respondents being Mwingi SRMCC No. 9 of 2011 between Lena Mbuli Kilonzo –vs- Joshua Mwandikwa & 8 others being SRMCC (Mwingi) be transferred to the ELC at Garissa for hearing and determination.
2. THAT an order for status quo to be maintained be issued pending hearing and determination of this application.
3. THAT an order for status quo be maintained be issued pending hearing and determination of the suit.
4. THAT costs of the application be provided for.
That application is supported by the affidavit of Peter Mbiti Kilonzo and grounds shown on the face of the said application. In his supporting affidavit the applicant avers that the suit in question relates to a land dispute which can only be heard by the environment and land court. He further contends that Mwingi law court is not an ELC court.
The said application is opposed with a replying affidavit sworn by Susan Nduni Makau in which she concurs that the senior magistrate’s court in Mwingi has no jurisdiction to hear and determine the same and that the case be transferred to the ELC court in Garissa for hearing and determination.
The respondents do not seem to oppose the application in principle.
Having considered the affidavit evidence and the submissions by counsels appearing for both sides it is imperative to note that prior to the filing of this application the high court in Malindi. Constitutional Petition No 3 of 2016 comprissing. ANYARA EMUKULE MUGURE THANDE AND CHITEMBWE JJ delivered a ruling on 11th November 2016 in which the court decreed that Section 2 of the statute law (Miscellaneous Amendment) Act 2015 in relation to the jurisdiction of the subordinate courts, in respect of matters relating to environment and the use, occupation of and the title to land is inconsistent with Article 162 (2) of the Constitution and therefore null and void.
The respondents in that case were dissatisfied with the said ruling and appeared to the court of Appeal in Civil Appeal No. 287 of 2017 (unreported).
In their judgment delivered on 19th October 2017 the learned judges comprissing P.N WAKI, R. N NAMBUYE, S. GATEMBU KAIRU D. K MUSINGA AND A. K MURGOR JJ held this:
“The result of the foregoing is that the appeal partially succeeds. We accordingly make the following orders:
(a) The judgment and order of the high court declaring Section 2 of the statute law (Miscellaneous Amendments) Act 2015 Section 7 (3) 8(d) and 26(3) and (4) of the ELC Act; Section 9 (a) and (b) of the magistrate’s court Act 2015 as unconstitutional, null and void is hereby set aside.
(b) The order of certiorari issued by the high court quashing gazette Notice number 1472 dated 1st March 2016 published on 11th March 2016 and 1745 dated 14th March 2016 published on 18th March, 2016 is hereby set aside,”
Following that decision by the superior court, it is now clear that the subordinate courts have jurisdiction to hear and determine matters relating to environment and use and occupation of and title to land.
Consequently, this application lacks merit and the same is hereby dismissed with each party to bear his own costs.
Read and Delivered in the open court this 24th October, 2017.
E.C Cherono (Mr.)
ELC Judge
In the presence of
Mr. Munywoki for applicant.