[2004] KEHC 1372 (KLR)
The court found that the claim before the District Magistrate's Court at Kaloleni was rooted in trespass to land, as evidenced by the pleadings and the reliefs sought. Since the Land Disputes Tribunals Act vests exclusive jurisdiction over such matters in the Land Disputes Tribunal, the necessity of producing the...
Source-derived case information.
- Citation
- [2004] KEHC 1372 (KLR)
- Parties
- Applicant: Republic; Respondent: The District Magistrate’s Court at Kaloleni; Interested Party: James Kaluko Kyalo; Interested Party: Katana Kituku Kacheche; Applicant: Thali Ngala Hinzano
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 5 of 2000
- Procedural Posture
- Miscellaneous Application / Interim Ruling on Application for Certiorari and Prohibition
- Outcome
- Interim order; tribunal proceedings not to be introduced at this stage; parties to proceed with submissions.
- Legal Topics
- Jurisdiction of Magistrate Courts, Trespass to Land, Land Disputes Tribunals Act, Judicial Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
The District Magistrate’s Court at Kaloleni
Respondent
James Kaluko Kyalo
Interested Party
Katana Kituku Kacheche
Interested Party
Thali Ngala Hinzano
Applicant
Procedural Posture
Miscellaneous Application / Interim Ruling on Application for Certiorari and Prohibition
Legal Issues
- 1 Whether the District Magistrate's Court at Kaloleni had jurisdiction to entertain a claim based on trespass to land.
- 2 Whether proceedings from the Land Disputes Tribunal are necessary for determining the application for certiorari and prohibition.
Ratio Decidendi
The court found that the claim before the District Magistrate's Court at Kaloleni was rooted in trespass to land, as evidenced by the pleadings and the reliefs sought. Since the Land Disputes Tribunals Act vests exclusive jurisdiction over such matters in the Land Disputes Tribunal, the necessity of producing the tribunal's proceedings at this stage was negated. The court determined that the central issue is the jurisdiction of the trial magistrate, and thus, the Land Disputes Tribunal proceedings are not required for the current determination. The parties were directed to proceed to complete their submissions without introducing the tribunal proceedings at this stage.
Court Disposition
Interim order; tribunal proceedings not to be introduced at this stage; parties to proceed with submissions.
Orders
- The Land Disputes Tribunal proceedings will not be introduced at this stage.
- Parties to proceed to complete their submissions on a date to be fixed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA MISC. CIVIL APPLICATION NO. 5 OF 2000
IN THE MATTER OF: AN APPLICATION BY THALI NGALI HINZANO FOR AN ORDER OF CERTIORARI AND PROHIBITION
IN THE MATTER OF: THE LAND DISPUTES TRIBUNALS ACT 1990 18 OF 1990
AND
IN THE MATTER OF: THE DISTRICT MAGISTRATE’S COURT KALOLENI CIVIL CASE NO. 48 OF 1999 JAMES KALUKO KYALO VS KATANA KITUKU KACHECHI
REPUBLIC………………………..………………………….NOMINAL APPLICANT
V E R S U S
THE DISTRICT MAGISTRATE’S COURT AT KALOLENI……. RESPONDENT
AND
1. JAMES KALUKO KYALO
2. KATANA KITUKU KACHECHE…………………INTERESTED PARTIES
EXPARTE
THALI NGALA HINZANO
Coram: Before Hon. Justice Mwera
Mulwa for 1st interested party
Okello for the Respondent
Wanyonyi for 3rd Interested Party
No appearance for 2nd interested party
Court clerk – Sango
INTERIM R U L I N G
When Mr. Kimani was arguing the application for certiorari in that the orders made by the Learned Trial Magistrate in Kaloleni District Magistrate’s Court No. 48 of 1999 James Kyalo VS Katana Kituku sometime in November 1999 or thereabout, be brought up her to be quashed, he intimated that the land subject in that case was before a Land Disputes Tribunal (so the verifying affidavit of the applicant said at paragraph 10), the court expressed a desire to have the proceedings of that tribunal placed before it in case they were necessary in determining this notice of motion. Although Mr. Kimani maintained that on the basis of the lack of jurisdiction by the Learned Trial Magistrate to entertain causes founded on trespass to land as per the said suit, he may nonetheless be granted leave to file the tribunal proceedings and other related detail. That because the said suit was based on trespass such a claim fell to be entertained exclusively by the tribunal set up under the Land Disputes Tribunals Act. The other counsel did not think like Mr. Kimani, arguing that he should still put his case even without the said Land Disputes Tribunal proceedings.
After hearing counsel and perusing the plaint in the said lower court case, the court is satisfied that the claim therein was rooted in trespass. The plaintiff (Kyalo) the 1st interested party here, pleaded:-
“4, On or about the year 1995 – 1996 the defendant unlawfully ente red, encroached and trespassed into the plaintiff’s said land and premises and constructed house live (?) structures on the plaintiffs shamba ……………”
And the notice of motion of 11th December 1999 which the same Kyalo filed and the Learned Trial Magistrate heard and delivered a ruling on claimed that there was entering on the said land – an act the Learned Trial Magistrate was asked to restrain. He did so restrain. Now if the central issue is whether the trial magistrate had jurisdiction to entertain causes based on trespass to land or not, then the land disputes Tribunal proceedings do not appear necessary now. Accordingly they will not be introduced now. The parties to proceed to complete their submissions on date to be fixed now.
Orders delivered on 15th September, 2004.
J.W. MWERA
JUDGE