Lawyers in Kenya blame High Court judgment for thousands of pending land cases

Thousands of land cases have stalled reportedly because of a High Court decision barring magistrates' courts from arbitrating the disputes.

The judgment at the High Court in Malindi decreed that only the Land and Environment Court has jurisdiction over land disputes.

A petition has been lodged with the Law Society of Kenya (LSK) by lawyer Allen Gichuhi who estimates that the decision has affected at least 40,000 cases before magistrates' courts in Milimani Law Courts.

He reckons that tens of billions of shillings are at stake because of the freeze.

"I am informed that close to 40,000 cases related to the magistrates' court in Milimani Law Courts in Nairobi have been affected. None of these cases will progress. Countrywide, the impact will mean hundreds of thousands of cases will now be paralysed thus impacting on our clients' access to justice and our own livelihood as a profession," Mr Gichuhi writes in the letter addressed to LSK chief executive Mercy Wambua.

He added: "How can we earn fees if cases are not concluded? Thousands of advocates will be rendered destitute. Does it mean that clients will incur extra fees for transfer of cases? Will objections then be raised to such applications to transfer a case which did not have jurisdiction in the first instance? Tens of billions of shillings have now been held up on account of paralysis when cases cannot be determined."

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The contested judgment was delivered by judges Anyara Emukule, Said Chitembwe and Mugure Thande.

The lawyers say the problem is further compounded by another decision that blocked the Chief Justice from carrying out transfers across various court divisions.

Yesterday, LSK president Isaac Okero explained that the genesis of the problem stretches beyond the Malindi judgement.

He cited laxity by the appointing authority to adequately employ judges for the lands and employment courts once they were created by the Constitution.

"It's not the Malindi court that created the problems but the Constitution gave special courts and they did not have the capacity to hear the cases," said Okero. "The added environment and lands court judges may not solve the problem."

Okero's view was that the case was meant to "fight for the Constitution" as the former Chief Justice allegedly overlooked the law to give lower courts powers that they did not have. Those who had concluded cases in the magistrates' courts, he said, have an immediate challenge of having their cases challenged for lack of jurisdiction.

The LSK head said that the only solution to the current problem is to have the Constitution amended to allow magistrates to hear land issues.

The concern by Gichuhi was also raised by lawyers Waikwa Wanyoike and former LSK president Erick Mutua who said that all matters heard and determined by the lower courts touching on land issues became null and void after the declaration by the three judges.

At the same time, Mutua said that the issue needs to be interrogated further by the Court of Appeal and the Supreme Court as it touches on 50 per cent of all cases filed before the courts.

He disagreed with the judges, saying that Kenyans will have to give more money to have their land cases heard by the lands High Court and also have to wait more for final judgments as the current number of judges cannot serve them adequately.

Amend Constitution

In addition, he said, the judgment means that a court station has to have at least three judges who can hear land issues, employment issues and constitutional issues, which means that it will cost more to employ judges as compared to having one judge who can listen to all he issues.

"In terms of access to justice we can't say we have enough judges to hear the cases. The judges had a very restrictive way of interpreting the Constitution and what they are trying to say is that we amend the Constitution which can be done. That decision has to be tested," said Mutua.

The court ruled the Chief Justice cannot transfer judges from various divisions of the High Court, the Labour and Employment Court, Environment and Lands Court to hear cases across board.

Former Chief Justice Willy Mutunga had gazetted a new law, giving magistrates' courts the power to hear land disputes, but the decision was opposed by the LSK, which argued that the Act was unconstitutional.