Kenya Magistrates Lack Jurisdiction Over Land and Environment Matters

KENYA MAGISTRATE COURTS LACK JURISDICTION OVER LAND AND ENVIRONMENT MATTERS

Background

1. On 15^th December 2015, the President of the Republic of Kenya assented to three pieces of legislation.[1] The first legislation is the Statute Law (Miscellaneous Amendments) Act, 2015.[2] The second is the Magistrates’ Courts Act, 2015[3] and the third is the High Court (Organization and Administration) Act, 2015.[4] All these three statutes came into force on 2^nd January

 

2. Malindi Law Society filed a Petition at the High Court in Malindi challenging the constitutionality of some provisions in the legislation.

 

3. The Petitioner sought the following prayers:
   • A declaration that sections 7(3), 8(d) and 26(4)(b) of the Environment and Land Court Act (“ELCA”) are unconstitutional, null and void;
   • A declaration that Sections 9(a) and (b) and 10(6) of the Magistrate’s Court Act, 2015 (“MCA”) are unconstitutional, null and void;
   • A declaration that Sections 13(4) and 36(3) of the High Court (Organization and Administration) Act (“HCOAA”) are unconstitutional, null and void; and
   • An order of Certiorari Quashing Gazette Notices Nos. 1472 and 1745 (“the Gazette Notices”).

 
An outline of the provisions contested

4. Section7(3) of the ELC A mandates the Chief Justice, on the recommendation of the Judicial Service Commission, to transfer a judge who meets the qualifications set out in the Act[5] to serve on the court.

 

5. Section 8(d) provides that a Judge of the Court shall hold office until a transfer of the Judge from the Court to the High Court or another court of the status of the High Court.

 

6. Section 26(4)(b) states that the Magistrate appointed under sub-section (3) has jurisdiction and power to handle civil cases involving occupation, title to land. The competency of a Magistrate is subject to the value of the pecuniary jurisdiction set out in the MCA[6] as read with Article 169(2) of the Constitution.

 

7. Sections 9(a) and (b) of the MCA empowers the Magistrate’s Court to hear and determine claims relating to the environment and land in the exercise of the jurisdiction conferred upon it the ELCA. Under this law, the Magistrate Court may hear and determine employment and labor relation claims under Section 29 of the Employment & Labour Relations Court Act (“ELRCA”) and subject to the financial limits under the Magistrates’ Courts.[7] Section 10(6) of the MCA empowers Magistrates’ Court to punish for contempt of court.[8]

 

8. Section 13(4) of the HCOAA empowers the Chief Justice to assign special duties to any judge for exercising judicial authority. Section 36(3) similarly provides for punishment for contempt of court.[9]

 

9. On 11^th March 2016, the Chief Justice published a list of 168 magistrates in Gazette Notice No. 1472 of 1^st March 2016 giving them jurisdiction to deal with cases involving disputes relating to the environment and land in areas of their competence with effect from 14th March 2016.

 
Main Issues for Determination
 

10. The main issue for determination was whether:
    • sections 9(a) and (b) and 10(6) of the MCA;
    • Sections 13(4) and 36(3) of the HCOAA; and
    • Sections 7(3), 8(d) and 26(4)(b) of the ELCA as read with the amendments contained in the Statute Law (Miscellaneous Amendments) Act, 2015 (“SLMAA”)

are consistent with Article 162(2)(a) and (b)[10] and 94[11] of the Constitution 2010.

 

Analysis and determination

11. The court found no unconstitutionality in Sections 13(4) and 36(3) of the HCOAA. It stated:

“This provision merely provides for punishment for a person who commits an act of contempt in the face of the Court like any other penal provision, providing sanction for transgression. We, therefore, do not find anything inconsistent with the Constitution.”

 

12. Section 13(4) empowers the Chief Justice to assign special duties to any judge for exercising judicial authority which does not amount to usurpation or abuse of power or provisions of the law.

 

13. On the ELCA, the High Court found two issues of determination:
    • The jurisdiction of the ELC and that of the ELRC, vis-à-vis that of the High Court; and
    • The jurisdiction of the magistrate (subordinate) courts about the environment and use, occupation and title to land.
14. The Court found that provisions of the SLMAA on the ELC and ELRC are inconsistent with the clear provisions of Article 162(2)[12] as read with Article 165(5) of the Constitution in as far as the SLMAA purported to confer cross-jurisdiction.

 
Jurisdiction of the ELC and that of the ELRC
 

15. The court decided that the Constitution confer jurisdiction on courts, and the particular statutes derive their force from the Constitution. The administrative acts of the Chief Justice will not confer jurisdiction on courts. Consequently, the Court found that Section 2 of the SLMAA[13] was inconsistent with the Constitution, and therefore void to the extent of the inconsistency.

 
Jurisdiction of Magistrate Courts

16. The court held that Section 2 of the SLMAA about the competency of the Magistrate (subordinate) courts in respect of matters relating to the environment and use, the occupation of and title to land is inconsistent with Article 162(2) of the Constitution, and therefore void to the extent of the inconsistency.

 

17. The court also found Sections 9 (a) and (b) of the MCA inconsistent with the Constitution and therefore Section 10(6) of the Magistrates’ Court Act, 2015 give magistrates the power to punish for contempt is not unconstitutional.

 

18. The court issued an order of Certiorari quashing the Gazette Notices effectively divesting the magistrates of jurisdiction.

 

19. In conclusion, the court’s decision effectively meant that magistrates to handle the environment and land matters at this level had no such jurisdiction, and such matters cannot proceed at the Magistrates’ Courts. The ELC Judges should handle these issues.

 
Adverse Implications of the Judgment
 

20. With the magistrate’s courts having been deprived of jurisdiction to handle the environment and land related matters, the following concerns arise if no appeal is registered and orders staying the judgment sought and granted. There is already apparently a notice of appeal recorded in the Court of Appeal, and it is quite unlikely that the Court of Appeal would interfere with the Judgement.

 

21. The situation is quite unsatisfactory because instead of appointing additional persons to be judges of ELC, the system appears to have allowed land related matters be registered and hearings commenced at the magistrates’ courts level.[14]

 

22. This decision is likely to have a similar effect in the Employment & Labour Relations Court (ELRC) whose matters are currently being handled by the magistrates’ courts. The ELRC is a court with similar status as the ELC, and the Constitution assigns jurisdiction to the ELRC similarly as it has assigned the[15] An overzealous litigant will rely on this decision to get the High Court to deprive the magistrates’ courts of the competence to handle labor related matters with a high likelihood of success leaving magistrates with mainly criminal cases that do not involve murder charges, whose jurisdiction the Constitution reserves for the High Court.

 

23. Litigants now have only one option, which is to transfer all land related matters to the ELC. Such massive transfers will complicate the case backlogs at the ELC and negatively affect the speed with which the ELC is determining and concluding [16] The Court system through the office of the Chief Registrar should now suffer the costs of transferring the cases from the improper magistrate courts to the proper ELC cases and should factor into their budgets the cost of doing so rapidly to ensure that there is no failure through delayed justice.

 

24. Access to justice will be affected. The delay to determine matters caused by the anticipated backlog at the ELC and the long process of having matters transferred coupled with how long they will take to be determined will delay and deny justice to litigants. The Chief Registrar should move with speed to provide corrections.

 

25. Litigants across the country experience significant challenges in accessing ELC services’. The ELC courts are not well distributed across the jurisdiction and even where they exist there are major challenges of case backlog, constrained staffing and lack of enough judges appointed to preside over matters in these courts in comparison with the magistrate (subordinate) courts.

 
Conclusion
 

26. The decision of the Malindi is sound in law under the legal system obtaining in Kenya. The chances of any appeal succeeding are therefore slim.
27. The Chief Registrar should get the Judicial Service Commission to advertise and hire the required number of ELC and ELRC judges to ensure that judicial service delivery in the environment, land, and labor matters is effective.

[1] <http://www.president.go.ke/2015/12/15/president-kenyatta-assents-to-seven-bills/> accessed on 24.11.2016.
[2]http://kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2016/TheStatuteLaw_MiscellaneousAmendments_ActNo7of2016.pdf accessed on 24.11.2016.
[3] <http://www.kenyalaw.org/lex//actview.xql?actid=No.%2026%20of%202015> accessed on 24.11.2016.
[4] http://www.kenyalaw.org/lex//actview.xql?actid=No.%2027%20of%202015 accessed on 24.11.2016.
[5] Sub-section (1) of the Environment & Land Court Act states that a person shall be qualified for appointment as Judge of the Court if the person: possesses the qualifications specified under Article 166(2) of the Constitution; and has at least ten years’ experience as a distinguished academic or legal practitioner with knowledge and experience in matters relating to environment or land.
[6] Section 7(1) of the Magistrates’ Court Act, 2015 provides for pecuniary limits of the matters to be handled by the various categories of the magistrates’ courts.
[7] Ibid.
[8] It provides that a Magistrates’ Court may sentence a person who is convicted of contempt of court to imprisonment for a term not exceeding five days, or a fine not exceeding one hundred thousand shillings, or both.
[9] Sub-section (1) of the High Court (Organization and Administration) Act the states that a person who commits an offence under (contempt of court) shall on conviction be liable to imprisonment for a term not exceeding five days, or to a fine not exceeding one hundred thousand shillings, or to both.
[10] Article 162(2)(a) of the Constitution of Kenya 2010states that Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to employment and labour relations.
[11] Article 94 of the Constitution of Kenya 2010 provides for the role of parliament among them make legislation conferring authority expressly specifying the purpose and objectives for which that authority is conferred, the limits of the authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority.
[12] Supra note 11.
[13] This is the section expressly providing for amendments to provisions to various sections of statutes as outlined in the Act.
[14] This concern has been captured by a Letter to the LSK written by Allan Waiyaki Gichui, advocate and a member of the LSK, on 21.11.2016 enumerating a number of concerns on the adverse implications that the decision is likely to have.
[15] Established under Article 162(2) of the Constitution of Kenya.
 
[16] Ibid.