Ruling elicits fears of land cases piling

Lawyer Okweh Achiando addressing Kenya Airways staff in 2012. Magistrates have lost the authority to hear land matters. PHOTO| FILE | NATION MEDIA GROUP

What you need to know:

  • Magistrates lost the authority to hear land matters in a ruling delivered by Justices Mathew Emukule, Said Chitembwe and Mugure Thande on November 11, 2016.
  • Mr Allen Gichuhi said the few judges in the Environment and Land court may not cope with the many cases that are set to be transferred to them.
  • Ruling declared sections of the Magistrates Court Act and the Environment and Land Court Act unconstitutional.

There are about 40,000 land cases at the magistrates’ courts whose hearing may stall, following a recent ruling that such cases should only be handled by the Environment and Land courts.

Magistrates lost the authority to hear land matters in a ruling delivered by Justices Mathew Emukule, Said Chitembwe and Mugure Thande on November 11, which also declared sections of the Magistrates Court Act and the Environment and Land Court Act unconstitutional.

Also nullified was a gazette notice of March 1 in which then-Chief Justice Willy Mutunga published a list of 168 magistrates given the power to deal with such cases.

Some lawyers are concerned that many cases would be paralysed.

Mr Allen Gichuhi said the few judges in the Environment and Land court may not cope with the many cases that are set to be transferred to them. Litigants may incur extra case filing fees, he added.

UNPRECEDENTED BACKLONG

“An unprecedented backlog of cases has been created,” said Mr Gichuhi on Monday.

He added that in certain circumstances, High Court judges had held that magistrates had powers to deal with land matters.

However, Mr Okweh Achiando said the law only mandated the Environment and Land courts with power to preside over such cases and that the National Assembly and Senate had a duty to uphold the Constitution.

“Parliament cannot take away a function of the Environment and Land courts and give it to magistrates through an Act,” said Mr Achiando.

He added that litigants would not be subjected to extra filing fees because the High Court last year issued orders stopping magistrate courts from handling land matters pending the hearing and determination of the application challenging the lower courts’ jurisdiction.

“Litigants incurred no cost as they had to wait for the outcome of the case. They also had the option of filing cases at the Environment and Land courts and so the issue of double cost does not arise,” added Mr Achiando.

He said claims of backlog were farfetched “because it is a concern that has persisted in all courts”.

“The Environment and Land Courts should be left to handle the cases as provided by the law,” said the lawyer.