November 10, 2017
Quicker Determination of Environment and Land Cases?

The Court of Appeal has recently overturned the Malindi High Court’s decision in Constitutional Petition No. 3 of 2016, the effect of which was to bar magistrates from hearing cases concerning land matters. The High Court decision also quashed two Gazette Notices by which the Chief Justice had appointed certain magistrates in various stations around the country to hear and determine land matters.

Despite not being a party to the original proceedings, the Court of Appeal also found that the Law Society of Kenya Nairobi Branch was entitled to appeal against the High Court Decision.

In reversing the High Court decision to reserve the right to hear land matters to the specialised Environment and Land Court, the court has affirmed devolution and access to justice as critical pillars of the constitution. It has also clarified that:

  • Article 169 of the Constitution does not restrict Parliament’s authority to confer jurisdiction to hear land matters to the magistrates’ courts; and as such
  • Sections 9(a) and (b) of the Magistrates’ Court Act, 2015 and Sections 7(3), 8(d), 26 (3) and (4) of the Environment and Land Court Act remain constitutional.

The Court of Appeal’s decision means environment and land matters can be instituted for determination before a magistrate’s court, provided the value of the property in dispute does not exceed pecuniary limits set out under Section 7 of the Magistrates’ Court Act, 2015.

The Court of Appeal’s finding that any party aggrieved by a decision may institute appellate proceedings is very significant.  It means that a person who is not a party in original trial proceedings may nevertheless institute an appeal against the decision if he/she is directly affected by that decision.

Please click here to read the full D&I Legal Alert.

 

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