[2019] KEELC 4001 (KLR)
The court found that the orders made by Honourable Arome (Resident Magistrate) on 30th August 2018 were null and void because the magistrate was not designated to hear environment and land matters as required by Section 26(3) and (4) of the Environment and Land Court Act. Furthermore, the judgment was entered in a...
Source-derived case information.
- Citation
- [2019] KEELC 4001 (KLR)
- Parties
- Plaintiff: Rosemary Atieno Mbogo; Defendant: Rose Atieno Juma; Defendant: Charles Orwa Oyombe; Defendant: John Okuku Oyombe; Defendant: Martin Adera Oyombe; Defendant: Stephen Ochieng
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 5 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Review of Subordinate Court Orders
- Outcome
- orders of 30th August 2018 set aside; suit to be heard afresh by designated magistrate
- Legal Topics
- Eviction Orders, Jurisdiction of Magistrates, Review of Judgments, Designation of Courts
- 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
Rosemary Atieno Mbogo
Plaintiff
Rose Atieno Juma
Defendant
Charles Orwa Oyombe
Defendant
John Okuku Oyombe
Defendant
Martin Adera Oyombe
Defendant
Stephen Ochieng
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Review of Subordinate Court Orders
Legal Issues
- 1 Whether the orders made by Honourable Arome (Resident Magistrate) on 30th August 2018 in Ndhiwa SRMCC No. 397 of 2017 were valid and lawful.
- 2 Whether the magistrate who issued the orders had jurisdiction under the Environment and Land Court Act and the Land Act.
- 3 Whether the procedure for entering judgment in a non-liquidated claim was properly followed.
Ratio Decidendi
The court found that the orders made by Honourable Arome (Resident Magistrate) on 30th August 2018 were null and void because the magistrate was not designated to hear environment and land matters as required by Section 26(3) and (4) of the Environment and Land Court Act. Furthermore, the judgment was entered in a claim that was not a liquidated demand, contrary to the requirements of Order 10 of the Civil Procedure Rules. The court emphasized that jurisdiction is fundamental and any proceedings conducted without it are a nullity. Consequently, the orders were set aside and the matter was directed to be heard afresh by a properly designated magistrate.
Court Disposition
orders of 30th August 2018 set aside; suit to be heard afresh by designated magistrate
Orders
- The orders made on 30th August 2018 by Honourable Arome (Resident Magistrate) in Ndhiwa Senior Resident Magistrate’s Court Civil Case No. 397 of 2017 are hereby set aside.
- The suit shall be heard and determined without delay by a designated magistrate at Ndhiwa Principal Magistrate’s Court.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT OF KENYA AT MIGORI
ELC MISC. CASE NO. 5 OF 2019
ROSEMARY ATIENO MBOGO.................................PLAINTIFF
VERSUS
1. ROSE ATIENO JUMA
2. CHARLES ORWA OYOMBE
3. JOHN OKUKU OYOMBE
4. MARTIN ADERA OYOMBE
5. STEPHEN OCHIENG........................................DEFENDANTS
(Being a review of orders made by Honourable Arome Resident Magistrate in Ndhiwa SRMCC NO. 397 of 2017 on 30/8/2018).
RULING
1. The suit namely Ndhiwa Senior Resident Magistrate’s Civil Case No. 397 of 2016 has been drawn to my attention by Hon. M.A. Ochieng (Mrs), Senior Resident Magistrate Ndhiwa for consideration for review of orders made therein on 30th August, 2018 by Hon. Arome( Resident Magistrate).
2. The original file together with a certified copy of proceedings in that suit were availed to this court on 11th March 2019. I have carefully perused the entire record. I note that the plaintiff originated the suit by way of a plaint (Fast Track) dated 30th October 2017 filed on 31st October 2017 and amended on 16th April,2018 seeking eviction orders and costs of the suit against the defendant’s jointly and severally in respect of the suit land, LR NO. KABUOCH/KOBITA/KAWUOR/2332, measuring approximately 2. 70 hectares.
3. The relief of eviction sought as per the plaint in that suit is governed by Section 152 (A) to 152 (1) of the Land Act, 2016 (2012). Subordinate courts as empowered by any written law shall have jurisdiction to hear and determine Environment and Land matters including eviction further to Section 150 of the said Act (2016).
4. Be that as it may,Section 26 (3) and (4) of the Environment and Land Court Act, 2015, (2012)(the ELC Act) makes provision for designated Magistrates to deal with Environment and Land disputes. Appeals from the designated magistrate’s court’s lie with the Environment and Land Court (the ELC).
5. It is discernable from the record of the trial court that on 30th August, 2018, a request for Judgment for the plaintiff against the defendants who had entered appearance but failed to file defence was filed by the firm of Owade and Company Advocates for the plaintiff. The request for judgment was endorsed accordingly by Honourable Arome (Resident Magistrate).
6. The plaintiff’s claim in respect of the suit land is not a liquidated demand as provided for under Order 10 Rules 4, 5,6and7 of the Civil Procedure Rules, 2010. In the circumstances, the order made on 30th August 2018 by the Honourable Magistrate was superfluous.
7. More fundamentally, Honourable Arome (Resident Magistrate) who endorsed the orders as a Judgment on 30th August,2018, was not a designated Magistrate as envisaged under Section 26 (3) and (4) of the ELC Act, section 9 (a) of the Magistrates’ courts Act, 2015 as read with Section 15 of the Land Act,2016 (2012). Thus the said learned magistrate was want of jurisdiction over the suit as recognised by Lenaola J (as he then was) in Daniel Kaloki Kioko and another –v- Willy Muasya Kioko (2009) eKLR (2009), see also the Owners of Motor Vessel Lilian “S” –V- Caltex Oil Kenya Ltd (1989) KLR 1.
8. This court is bound by the procedure laid down by the Civil Procedure Act (Cap 21 Laws of Kenya) as stipulated under Section 19 (2) of the ELC Act. I am also a live to the overriding objective under Section 3 of the ELC Act applicable in this matter.
9. It has been observed that land is an extremely important aspect of lives of ordinary people and land cases must be heard as quickly as possible by any forum provided by law or as agreed by the parties; see the case of Mwangi and another –vs - Mwangi (1986) KLR 328 and Article 159 (b) of the Constitution of Kenya,2010.
10. Wherefore and Pursuant toSections 3 (1) of the ELC Actand sections 1,1A, 3,3A of the Civil Procedure Act ( Cap 21),I direct and order as follows :-
a) The orders made on 30th August 2018 by Honourable Arome (Resident Magistrate ) in Ndhiwa Senior Resident Magistrate’s Court Civil case No. 397 of 2017 be and are hereby set aside.
b) The suit referred to in order (a) herein above be heard and determined without delay by a designated magistrate at Ndhiwa Principal Magistrate’s Court.
c) The original file of the suit namely Ndhiwa Senior Resident Magistrate’s court Civil case No. 397 of 2017 be returned to Ndhiwa Law Courts with due dispatch.
Orders accordingly.
DELIVERED, DATED and SIGNED AT MIGORI THIS 19TH DAY OF MARCH 2019.
G.M. A. ONG’ONDO
JUDGE
In the presence of
Tom Maurice – Court Assistant