Jurisdiction of the Magistrates Court in relation to Land matters

It is important to restate the words of Nyarangi J.A. in The Owners of Motor Vessel Lillian S
Vs. Caltex Kenya Ltd (1989) K.L.R that;
Jurisdiction is everything. Without it, a court has no power to make one more step.
Where a court has no jurisdiction there would be no basis for a continuation of
proceedings pending other evidence. A Court of Law downs its tools in respect of the
matter before, it the moment it holds the opinion that it is without jurisdiction.
So the question of jurisdiction should be determined on the onset.
Article 162(2) of the Constitution provides that Parliament shall establish Courts with the status
of the High Court to hear and determine disputes relating to the environment and use and
occupation of, and title to land. 1 Article 162(3) then provides that Parliament shall determine the
jurisdiction and functions of the Courts contemplated in Article 162(2). It was on the basis of
this provision that Parliament enacted the Environment and Land Court Act, No. 19 of 20112
which came into effect on 30th August 2011.
Therefore, for one to determine if the Environmental and Land Court has exclusive jurisdiction
to hear and determine matters related to environment and the use and occupation of, and title to
land, one must turn to the provisions of the Environmental and Land Court Act to determine
what jurisdiction Parliament granted this Court as stipulated by Article 162(3). One of the canons
of statutory interpretation is that provisions of a statute ought to be read as a whole in order to
ascertain the intention of the legislature. Further, words used in a particular provision may be
used to clarify the meaning of the words of phrases used in the same context in other provisions
1 Parliament shall establish courts with the status of the High Court to hear and
determine disputes relating to; employment and labour relations and the
environment and the use and occupation of and title to land.
2 The object of the Act states as follows; An Act of Parliament to give effect to
Article 162(2)(b) of the Constitution; to establish a superior court to hear and
determine disputes relating to the environment and the use and occupation of, and
title to, land, and to make provision for its jurisdiction functions and powers, and for
connected purposes

within the Act. According to Halsburys Laws of England, 4th edition, Butterworths 1995, Vol
44(1), Para 1484;
It is one of the linguistic canons applicable to the construction of legislation that an Act
is to be read as a whole, so that an enactment within it is to be treated not as standing
alone but as falling to be interpreted in its context as part of the Act. The essence of
construction as a whole is that it enables the interpreter to perceive that a proposition in
one part of the Act is by implication modified by another provision elsewhere in the
Act...
In that context, looking at Section 13(1) of the Act3; it is clear that Parliament did not intend the
Court to have exclusive jurisdiction to hear and determine matters relating to environment and
use and occupation of and title to land.
Section states:
13(1) The court shall have original and appellate jurisdiction to hear and determine all
disputes in accordance with Article 162 (2) (b) of the Constitution

and with the

Provisions of this Act or any other law applicable in Kenya relating to environment and
land. (Emphasis)
Subsection 4 of the same section states;
13(4) In addition to the matters referred to in subsection (1) and (2), the court shall
exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals
in respect of matters falling within the jurisdiction of the court. (Emphasis)
Article 169 (1) of the Constitution 2010, lists Magistrates courts as subordinate courts; It
follows therefore that the Law creating and providing jurisdiction to this Court recognizes the
existence of appeals emanating from the Magistrates Court.4 There would be no appeals filed in

3 No 19 of 2011
4 Isaac Lenaola J in Edward Mwaniki Gaturu & another v Hon Attorney General & 3
others - Petition No. 72 OF 2013

this court from the Magistrates Courts without those courts having jurisdictions to hear and
determine cases relating to environment, use and occupation of, and title to land.
Section 5 of the Judicial Service Act5 provides for the functions of the Chief Justice. Section (2)
(c) in particular grants the Chief Justice powers to exercise general control over the Judiciary and
that includes powers to issue practice directions in control of the running of Courts. That section
provides as follows:
Despite the generality of Subsection (1), the Chief Justice shall(c) Exercise general direction and control over the Judiciary
Therefore, the Chief Justice cannot be said to be in violation of the Constitution or acted
unconstitutionally by issuing the said Gazette notice. He was performing his duties as stipulated
under the Environment and Land Court Act and in furtherance of his duties under the Judicial
Service Act. There are no inconsistencies between the Constitution and the Environmental and
Land Court Act in any event; It must also be remembered that one of the cardinal principles of
statutory interpretation is the presumption that statutes enacted by Parliament are constitutional
unless otherwise proved.6 In In the Commission for the Implementation of the Constitution V
Parliament of Kenya and Another, Nairobi Petition No. 454 of 2012 the Court cited with
approval the statement made in Re Application by Bahadur [1986] LRC 545 (Const.), where the
learned judge stated thus;
I would only emphasis that one should not start by assuming that what Parliament has
done in a lengthy process of legislation is unfair. One should rather assume that what has
been done is fair until the contrary is shown.....
The Court then concluded.

5 No. 1 of 2011
6 Ndyanabo Vs. Attorney General [2001] 2 EA 48; Also see In the Commission for
the Implementation of the Constitution V Parliament of Kenya and Another, Nairobi
Petition No. 454 of 2012

This court will start from the presumption that a statute as enacted by Parliament is
constitutional and is fair unless the contrary is proven.
The Chief Justices practice directions of 9th November, 2012 issued under the powers conferred
to the Chief Justice by Section 24 of the Environment and Land Court Act are, therefore,
relevant. Subsection 2 of the said section states:
24 (2) The Chief Justice shall make rules to regulate the practice and procedure, in
tribunals and subordinate courts on matters relating to land and Environment.
Practice directions7 numbers 6 and 7 are relevant to this application and state as follows:
6. All proceedings which were pending before the Magistrates courts, having been
transferred thereto from the new defunct District land Disputes Tribunals, shall continue to
be heard and determined by the same courts.
7. Magistrates courts shall continue to hear and determine all cases relating to the
environment and the use and occupation of, and title to land (whether pending or new) in
which the courts have the requisite pecuniary jurisdiction.
Alive to the facts stated above, the Magistrates Court Act was amended which resulted to the
Magistrates Court Act No. 26 of 2015. The preamble of the Act of Parliament states that it is to
give effect to Articles 23(2)8 and 169 1(a)9 & (2)10; to confer jurisdiction, functions and powers
on the Magistrates Court; and provide for procedure in the Magistrates Court. Section 22 of the
Act repeals the previous Act. This is to mean that reference to it will be prejudicial as the Court
7 Gazette Notice No.16268 of November 2012
8 Parliament shall enact legislation to give original jurisdiction in appropriate cases
to subordinate courts to hear and determine applications for redress of a denial,
violation or infringement of, or threat to, a right or fundamental freedom in the Bill
of Rights.
9 The Magistrates Courts
10 Parliament shall enact legislation conferring jurisdiction, functions and powers on
the courts established under clause 1

has new rules and regulations. The Act does not have any transition clause that is to mean it
should be adopted as it is as the Court is functionless with it.
Its also elementary law that a new legislation repeals the old legislation in its entirety unless the
new Act expressly provides that reference ought to be made to the old law.
In light of these, Section 7 lays down the pecuniary jurisdiction and powers in proceedings as;
i.

Twenty million Chief Magistrate

ii.

Fifteen million Senior Principal Magistrate

iii.

Ten million Principal Magistrate

iv.

Seven million Senior Resident Magistrate

v.

Five million Resident Magistrate

The Magistrates Court Act, 2015 gives the Magistrates Courts jurisdiction to handle claims in
employment, labour relations claims and environment cases. 11 The Act further states that
jurisdiction shall be subject to the value of the subject matter as laid down in section 7.
It must also be remembered that one of the cardinal principles of statutory interpretation is the
presumption that statutes enacted by Parliament are constitutional unless otherwise proved. 12 In
In the Commission for the Implementation of the Constitution v Parliament of Kenya and Anor,
Nairobi Petition No. 454 of 2012 the Court cited with approval the statement made in Re
Application by Bahadur [1986] LRC 545 (Const.), where the learned judge stated thus;
I would only emphasis that one should not start by assuming that what Parliament has
done in a lengthy process of legislation is unfair. One should rather assume that what has
been done is fair until the contrary is shown.....

11 Magistrates Court Act, 26 of 2015, Section 9

12 Ndyanabo Vs. Attorney General [2001] 2 EA 48; Also see In the Commission for
the Implementation of the Constitution V Parliament of Kenya and Another, Nairobi
Petition No. 454 of 2012

The Court then concluded.

This court will start from the presumption that a statute as enacted by Parliament is
constitutional and is fair unless the contrary is proven.
From the foregoing legal provisions it can be stated that:
The Magistrates court have jurisdiction to continue hearing and determining
matters on environment, use and occupation of, and title to land if the matters are
within their pecuniary jurisdiction, as well as those transferred to those courts from
the defunct land Disputes Tribunals. And the same is not unconstitutional.
LILIAN S CASE JURISDICATION MUST BE ACQUIRED BEFORE
JUDGMENT

ORAL APPLICATION TO FAULT THE STATEMENT OF ADMISSION

3A INHERENT POWERS TO MAKE ORDERS THAT MAYBE NECESSARY
ORDER 13.