There’s a real case for taking land and environment courts closer to the people

Land cases constitute a major proportion of our Judiciary’s caseload. Such cases are a frustrating experience. Litigants have often to be accompanied by neighbours, clansmen and all other manner of persons as witnesses. When this is translated into travel, subsistence and accommodation costs, the cases can become very expensive.

Moreover, many land cases are protracted and can take years to conclude. Therefore, to minimise costs, they need to be heard closest to the applicants.

This is not so at the moment. Land courts have gone further away from the consumer with the latest land and judicial reforms.

Following quests for the establishment of courts specifically dedicated to matters on land and the environment, the country enacted the Environment and Land Court Act in 2011.

The business of this court, which has the same status as the High Court, is to exclusively listen to and rule on matters of land and the environment. So, beware that if your land emits some foul smelling, corrosive or dangerous effluents or gases into a river or the atmosphere today, this is the court in which people could sue you.

This is the court which listens to matters relating to duplicated and forged titles. If a person attempts to sell you land or a house that doesn’t belong to him like some con men do when plots remain undeveloped and houses unoccupied for long, this is the court in which to fix them.

When contracts on community land are contested as is likely to happen in the counties striking minerals, nowadays, the solutions will be sought through Environment and Land courts.

Deliberate or inadvertent errors in survey, which occasionally lead to buyers getting less or more land than they paid for, will be resolved through these courts where the affected fail to agree.

The numerous cases of people buying rural or urban land through informal agreements without the consent of the local land control boards and/or other duly authorised approving authorities will also find their way to these courts when the deals flop.

Even in instances where leases are irregularly terminated or breached, these courts will adjudicate. One can then see how important land courts are to everyone and to every county.

But, while giving his keynote address during the first session of the United Nations Environment Assembly in Nairobi in June this year, Chief Justice Willy Mutunga revealed that only 16 such courts have been established in the country so far. This means they cover just about one third of our counties, leaving the rest without.

You can, therefore, imagine what is happening to justice relating to matters of land and environment in counties without such courts. Either justice is not provided at all, is delayed, or where obtained, the costs are unduly high.

RAISED CONCERNS

For instance, I recall reading numerous media reports about the Embu Council of Elders protesting the long distances residents of the county have to travel, and the associated high costs, to file land cases in the Environment and Land Court in Kerugoya, Kirinyaga County. The elders have reportedly petitioned the Chief Justice for the establishment of such a court in Embu Town.

But while Embu County has been loud in seeking redress on the matter, many others suffer in silence.

This is one clear area in which members of the National Assembly, the Senate and governors should have sought early intervention and innovative solutions.

They should not only root for funding of more such courts around the country, but also push for the expedient appointment of more judges to such courts.

While doing so, such leaders should keep in mind that counties with huge volumes of land transactions will need more than one such court and judges to effectively reduce litigation traffic.

In the interim, if he has not already done so, the Chief Justice should seek to have designated magistrates’ courts and High Courts around the country to preside over land and environment cases in jurisdictions far away from the already established Environment and Land Courts.

Mr Mwathane is a consultant on surveying and land information management. ([email protected])