Omar, Ramadhani and Mnzavas, JJ.A.: Before this appeal came up for hearing Mr. Mahatane, learned counsel for the respondent stated that while he was giving a copy H of the Notice of Motion to the advocate for the Appellant in which mention he wanted to argue on the striking out of this appeal as being time barred; he came across the decision of this Court in Civil Appeal No. 25 of 1989, which is on all fours with the present case. The decision he drew our attention to is to the effect that the High Court I had no jurisdiction to entertain the suit which concerned immovable
OMARI JJA, RAMADHANI JJA, MNZAVAS JJA
property which is not land held on a Government lease or a Right of Occupancy A granted under the Land Ordinance. The relevant provision of the law governing this decision is Section 63(1) of the Magistrates Courts Act, 1984 which reads:
Subject to the provisions of any law for the time being in force where jurisdiction in B respect of the same proceedings is conferred on different courts, each court shall have a concurrent jurisdiction therein;
C Provided that no civil proceedings in respect of marriage, guardianship or inheritance under customary law, or the incidents thereof, and no civil proceedings in respect of immovable property, other than proceedings relating to land held on a government lease, or a right of occupancy granted under the Land Ordinance or proceedings under section D 22 or 23 of the Land Ordinance shall be commenced in any court other than a primary court unless the Republic is a party thereto or unless the High Court gives leave for such proceedings to be commenced in some other court.
We are satisfied that this following decision of this Court in Civil Appeal No. 25 of E 1989 is relevant in this case. It reads thus:
We held that the High Court has no original jurisdiction in the matters mentioned above and cannot therefore order such proceedings to commence in itself. Our conclusion on F this point is supported by the view expressed by this court in the case of Frank M. Marealle v Paul Kyauka Njau [1982] T.L.R. p. 32.
G We think the rationale or policy behind the provisions of section 63 (1) which deprive the High Court of original jurisdiction in these and involve the community at the grass roots level, that the matters are better dealt with first by courts which are closer to the people than the High Court. H
We declare that these proceedings in the High Court were a nullity.
The appellant would remain with that portion of land which he is at this moment occupying. Either party if he is so minded can I
start fresh proceedings in the proper court. A
There should be no outcry on damages or costs that may have accrued since the inception of this case in the High Court.
B Order accordingly.
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