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Court to offer faster arbitration of property disputes in kenya

Property owners are warming up to faster dispute resolution following establishment of the Environment and Land Court.

Traditionally, real estate projects running into millions of shillings stalled following protracted legal battles occasioned by backlog of cases in courts.

Judges and magistrates who heard criminal and civil disputes were the same ones who presided over property disputes.

But now, the establishment of the Environment and Land Court and appointment of 14 pioneer judges countrywide may tilt the scales in favour of investors.

The establishment of the specialised court comes in the wake of new property laws including the Land Act, Land Registration Act and National Land Commission Act.

According to the Environment and Land Court Act, the courts will preside over cases relating to property contracts, land use, titles, boundaries, tenure and rates.

Others are rent, valuations, compulsory acquisition of land, administration and management of land and disputes relating to environment.

The language of the court is English but can facilitate use of indigenous languages, sign language, Braille and technologies for persons with disability.

And litigants — like investors from the Diaspora — may not have to come to court physically as the Act provides use of information communication technology (ICT).

For instance, the Land Court may direct that proceedings be conducted via tele-conferencing, video conferences and other modes of electronic communication.

Daily Practice

In daily practice, disputes relating to property have been adjourned severally after litigants failed to appear in person to give evidence. Property owners who refuse, fail or neglect to obey orders of the court will be liable to a fine not exceeding Sh20 million or imprisonment not exceeding two years or both.

For decades, piles of files on property disputes have gathered dust in court registries several years after death of petitioners (complainants).

The last time I checked, the specialised court was to take over all pending property cases.

Before the passing of the Environment and Land Court Act, Chief Justice Willy Mutunga said property disputes would continue being heard by normal courts.

But according to the transitional schedule, the cases that had not been concluded after establishment of the land court were to be taken over.

The transitional schedule eased pressure on property owners with pending land disputes including those between banks and borrowers.

Initially, it was a roller coaster after the Ministry of Lands recently blocked district land boards from hearing cases, sparking uproar from the public.

The Environment and Land Court Act repealed the Land Disputes Tribunal Act, scrapping the role of district land tribunals in favour of the new court.

Legally, freezing the cases meant billions of shillings in land related investments were left in limbo since the parties could not use the property as security for loans or transact in them.

However, Mutunga salvaged the situation by ordering cases pending before district land dispute tribunals transferred to the nearest resident magistrates.

And property cases that were before the provincial lands appeals committees were to be presided over by the nearest high court.

The cases were placed under separate registers to facilitate easier transfer to the Environment and Land Court if not concluded before its establishment.

Dr Mutunga also ordered new property disputes filed in the nearest High Court under a separate register.

Back to the Environment and Land Act, the Statute — in line with Article 159(2) of the Constitution — allows alternative dispute resolution of property disputes.

For instance, disputing parties may request the court to allow them resolve their misunderstanding by conciliation, mediation or traditional resolution mechanisms.

As property disputes are traditionally emotive, it will be interesting to see whether the optimism of the Chief Justice over the specialised court will change the scenario.

According to the CJ, establishment of the Environment and Land Court will shine a light on many dark corners in the land sector.

He said it would also streamline the adjudication of cases and reduce waiting periods so long exploited to unfair advantage.

The Standard

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