[2017] KEELC 1522 (KLR)
The court found that since there was no opposition to the application for transfer and the applicant had raised the issue of lack of jurisdiction of the magistrates' court to hear land matters, the application should be allowed. The court acknowledged that the issue of jurisdiction of magistrates' courts in land...
Source-derived case information.
- Citation
- [2017] KEELC 1522 (KLR)
- Parties
- Applicant: Peter Kariuki Njeru; Respondent: Erastus Gilbert Kimani; Respondent: Muriithi Francis Kimita
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 3 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit From Magistrate Court to Environment and Land Court
- Outcome
- application allowed
- Legal Topics
- Jurisdiction of Magistrates Courts, Transfer of Suits, Land Disputes, Court Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kariuki Njeru
Applicant
Erastus Gilbert Kimani
Respondent
Muriithi Francis Kimita
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit From Magistrate Court to Environment and Land Court
Legal Issues
- 1 Whether the magistrates' court had jurisdiction to determine land cases.
- 2 Whether the suit should be transferred from the magistrates' court to the Environment and Land Court.
Ratio Decidendi
The court found that since there was no opposition to the application for transfer and the applicant had raised the issue of lack of jurisdiction of the magistrates' court to hear land matters, the application should be allowed. The court acknowledged that the issue of jurisdiction of magistrates' courts in land matters was pending before the Court of Appeal, but proceeded to rule on the application due to its prosecution and lack of opposition. The notice of motion for transfer was therefore granted as prayed.
Court Disposition
application allowed
Orders
- The notice of motion dated 3rd April 2017 is allowed as prayed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT EMBU
E.L.C. MISC. CASE NO. 3 OF 2017
PETER KARIUKI NJERU.......................................APPPLICANT
VERSUS
ERASTUS GILBERT KIMANI.......................1ST RESPONDENT
MURIITHI FRANCIS KIMITA........................2ND RESPONDENT
RULING
1. The Applicant filed a notice of motion dated 3rd April 2017 seeking transfer of Embu CMCC Award No. 47 of 2011 from the CM’s court to this court on the basis that the said court had no jurisdiction to entertain the matter.
2. The said application was supported by an affidavit sworn by the Applicant on 31st March 2017 in which it was stated that the CM’s court had no jurisdiction to determine land cases.
3. There was no objection to the said application by counsel for the Respondent when the said application came up for hearing.
4. The court is aware that the question of whether or not the magistrates’ courts have jurisdiction is pending determination before the Court of Appeal and judgement is expected to be delivered on or about 13th October 2017. Ideally, this court should have waited for the decision of the Court of Appeal before determining this application. However, since the Applicant’s notice of motion was prosecuted on 29th June 2017, I shall make a ruling thereon even as we wait for the Court of Appeal Judgement.
5. There being no opposition to the said application, the court hereby allows the notice of motion dated 3rd April 2017 as prayed. There shall be no order as to costs.
6. Orders accordingly.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this26thday ofSEPTEMBER, 2017
In the presence of Mr Omakalwala for the Applicant and Mr Okwaro holding brief for Ms Rose Njeru for Respondent.
Court clerk Njue/Leadys
Y.M. ANGIMA
JUDGE
26. 09. 17