CJ David Maraga sets rules in bid to fast track 26,000 land cases

Chief Justice (CJ) David Maraga has instructed Principal and Chief Magistrates to strictly handle land cases of property worth Sh20 million and below.

Maraga’s order is expected to set in motion more than 26,000 land cases that had stalled at the magistrates courts following a High Court order that quashed powers given to the lower courts by the National Assembly.

The CJ has also published in the Gazette notice practising guidelines for magistrates’ courts on matters relating to land and environment.

In the new rules, all magistrates’ courts are required to open new registers for the environment and land cases, such cases transferred from the Environment and Land Court (ELC) to the High Court or the magistrates’ court shall be entered in the register and assigned a new number.

Only the ELC shall transfer environment and land cases from one station to another and no magistrate court shall handle any land case before satisfying itself that it has pecuniary jurisdiction to do so.

However, the new rules bar magistrates from hearing disputes under the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act, Chapter 26, Laws of Kenya or those falling within the jurisdiction of the rent Restriction tribunal under Restriction Act, Chapter 296, Laws of Kenya.

The CJ order is meant to reduce backlog of land disputes that continue to rise despite the Judiciary having established a special department to handle only matters arising from such disputes - ELC. According to statistics availed by the Judiciary, there were 26,133 cases pending before the land court as at June 30 last year, with Milimani Law Courts leading with 4,833 and Garissa having only 30 cases. In the Judiciary’s report on its administration of justice, 11,367 were backlog with a majority of them having been filed between three and six years ago.

New directive

Apart from Milimani, Kisumu has (2247), Eldoret (2132), Nakuru (1862), Kisii (1969), Mombasa (1936), Malindi (1148) and Nyeri (1298).

Maraga’s directive came after Court of Appeal reversed a High Court decision that barred magistrates from hearing the cases.

In the case, Parliament passed the law giving magistrates powers to hear land disputes and President Uhuru Kenyatta assented on December 15, 2015. It then came to effect on January 2, 2016.

However, Malindi Law Society of Kenya moved to the High Court to challenge the laws.

In November 2016, the High Court ruled that cases on land should only be handled by the ELCs in the country.

High Court judges Anyara Emukule (retired), Mugure Thande and Said Chitembwe quashed laws conferring powers on magistrates’ court to hear land and employment disputes that were enacted by Parliament.

The court also nullified a gazette notice that was published by the then Chief Justice Willy Mutunga that gave 168 magistrates powers to deal with such matters.