Thousands of land cases that have stalled at the magistrate’s courts across the country can now proceed after five judges of the Court of Appeal reversed a decision barring them from hearing the disputes.
The five judges set aside orders issued by three judges of the High in November last year, quashing laws enacted by Parliament, conferring powers on magistrates court to hear land and employment disputes.
The High Court had declared that it was illegal for Parliament to confer jurisdiction on the magistrates’ courts to hear land disputes. The Act giving effect to Articles 23(2) and 169(1)(a) and (2) of the Constitution was enacted and assented by President Uhuru Kenyatta on December 15, 2015.
It commenced on January 2, 2016. The case also questioned whether specialised courts have exclusive jurisdiction to determine disputes relating to employment and labour relations and the environment and land occupation.
The appeal was filed by the Nairobi branch of the Law Society of Kenya (LSK), the Attorney General and two other branches of the LSK.
In his submission, the Attorney General through Mr Waigi Kamau asserted that the High Court misapprehended and misinterpreted the law and failed to purposively and holistically interpret the Constitution. He said the decision had created uncertainty.
Justices Philp Waki, Roselyn Nambuye, Daniel Musinga, Gatembu Kairu and Agnes Murgor ruled that conferring jurisdiction on magistrates courts to hear and determine land matters does not diminish the specialisation of the courts.
They said appeals from the magistrates courts would still end up in specialised courts.