In a judgment dated 11^th November 2016, a three judge bench at the High Court in Malindi held that sections 9 (a) and (b) of the Magistrates Courts Act, 2015 and sections 7 (3), 8(d) and 26 (3) and (4) of the Environment and Land Court Act, were unconstitutional. The issue had been raised in the Malindi High Court Constitutional Petition number 3 of 2016 filed by the Law Society of Malindi.

The judgment also quashed Gazette Notices No. 1472 and No. 1745 of 1^st March 2016 and 14^th March 2016, respectively, which were issued by the Chief Justice appointing certain magistrates all over the country to hear and determine suits in relation to land matters based on the requisite pecuniary limits.

The office of the Attorney General, which was the first respondent in the matter, had argued that Article 165 of the Constitution presupposes and preserves the subordinate court’s jurisdiction to hear and determine certain land and environment cases as well as employment and labour disputes and therefore a proper interpretation of the Constitution would lead to the conclusion that Article 162 (2) envisioned courts with appellate jurisdiction and not exclusive jurisdiction.

The court held that Article 162 (2) did not envision any other court having jurisdiction in relation to land matters except the court to be established with the status of the High Court currently being the Environment and Land Court. The Court added that whereas Parliament had power under Article 169(d) to enact legislation conferring jurisdiction to subordinate courts, this power did not extend to the establishment of any court similar to those established under Article 162 (2) nor did it extend to the conferring of that jurisdiction to courts not established under Article 162 (2).

The Court also held that section 2 of the Statute Laws (Amendment) Act, 2015 was null and void so far as it related to the power of the Chief Justice to transfer of Judges from the High Court to courts of equal status established under Article 162 (2) and in relation to the conferring of jurisdiction on subordinate courts to hear and determine matters relating to environment, use and occupation of and title to land.

Unless this decision is overturned on appeal, only the Environment and Land Court shall have original jurisdiction to hear and determine any matters relating to environment, use and occupation of and title to land.

A copy of the judgement is available here.

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