Thousands of land cases that have stalled in magistrates’ courts across the country can now proceed after five judges of the Court of Appeal reversed a decision barring the lower courts from handling the disputes.
They set aside orders issued by the High Court in November last year, quashing laws enacted by Parliament, conferring powers to 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 to by President Uhuru Kenyatta on December 15, 2015.
It came into effect 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 the use and land occupation.
The appeal was filed by Nairobi Law Society of Kenya, the Attorney-General and two other branches of the LSK. In his submission, the AG, through Mr Waigi Kamau, asserted that the High Court misunderstood and misinterpreted the law and failed to purposively and holistically interpret the Constitution. He said the decision had created uncertainty.
In their judgment on Thursday, appellate judges Philip 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 specialised courts.
They said appeals from the magistrates’ courts will still end up in the specialised courts.
They said Kenyans cannot be barred from accessing justice and it was a fact that magistrates’ courts were more than the High Court.
“There are undoubtedly more magistrates’ courts in Kenya than there are specialised courts or even High Court stations. The close proximity of magistrates’ courts to the people ensures efficiency and access to justice at reasonable cost,” said the judges.