Musa Said v Miraji Mustafa & 4 others [2020] eKLR Case Summary

Court
Environment and Land Court at Kakamega
Category
Civil
Judge(s)
N.A. Matheka
Judgment Date
October 26, 2020
Country
Kenya
Document Type
PDF
Number of Pages
2

Case Brief: Musa Said v Miraji Mustafa & 4 others [2020] eKLR


1. Case Information:
- Name of the Case: Musa Said v. Miraji Mustafa, Swaleh Mustafa, Ahmed Mustafa, Hussein Mustafa, Kulthum Mustafa
- Case Number: ELC MISC. CASE NO. 11 OF 2020
- Court: Environment and Land Court at Kakamega
- Date Delivered: 26th October 2020
- Category of Law: Civil
- Judge(s): N.A. Matheka
- Country: Kenya

2. Questions Presented:
The central legal issues presented to the court involved whether the Kakamega Kadhi’s Court had jurisdiction over the disputes concerning land cautions, and whether the application by the applicant should be dismissed for want of jurisdiction.

3. Facts of the Case:
The applicant, Musa Said, filed a motion on 18th May 2020, seeking various orders against the respondents, who are members of the Mustafa family. The dispute arose from cautions lodged by the applicant against two parcels of land, Nandi/Kamobo/5275 and Nandi/Kamobo/4393, on 2nd October 2018. The applicant asserted that the Kakamega Kadhi’s Court lacked jurisdiction to entertain matters related to these cautions, as jurisdiction was vested exclusively in the Environment and Land Court under the Land Registration Act. The respondents had previously initiated proceedings in the Kadhi’s Court, claiming the removal of these cautions to facilitate their own legal actions regarding the land titles.

4. Procedural History:
The applicant's motion was met with opposition from the respondents, who argued that the matter was sub judice, as similar issues were pending before the Kadhi’s Court and the High Court. The respondents contended that the applicant had not exhausted all avenues in the Kadhi’s Court, which is akin to a magistrate's court, and that the application was an abuse of the court process. The court first addressed the preliminary issue of whether the matter was sub judice before considering the merits of the application.

5. Analysis:
- Rules: The court considered the provisions of the Land Registration Act, which delineates the jurisdiction of the Environment and Land Court, and the Kadhi’s Court Act, which limits the jurisdiction of the Kadhi’s Court to matters of Muslim personal law. Additionally, Sections 6 and 7 of the Civil Procedure Act were examined regarding the principle of sub judice.
- Case Law: The court referenced previous cases that established the jurisdictional boundaries of the Kadhi’s Court and the Environment and Land Court, noting that disputes involving land cautions fall outside the Kadhi’s Court's purview. The court acknowledged the existence of ongoing appeals regarding the same issues in the High Court.
- Application: The court found that the issues raised by the applicant were substantially similar to those already addressed in the ongoing appeals, thus confirming the applicability of the sub judice principle. The court ruled that it need not delve into the merits of the application given that it was already pending resolution in another competent court.

6. Conclusion:
The court upheld the preliminary objection raised by the respondents, determining that the application was sub judice and struck it off with costs to the respondents. This ruling reinforced the jurisdictional limits of the Kadhi’s Court and the Environment and Land Court in matters concerning land disputes.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The Environment and Land Court at Kakamega ruled against the application filed by Musa Said, affirming that the matter was sub judice due to ongoing proceedings in the Kadhi’s Court and the High Court. The decision highlights the importance of jurisdictional boundaries within Kenyan law, particularly in matters concerning land disputes, and emphasizes the need for litigants to exhaust available legal remedies before approaching higher courts.

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