The court considered whether or not to entertain the appellant’s ground on jurisdiction. The court held that an appellate court had discretion to allow a point that was neither pleaded nor raised in the lower court to be taken on appeal if such a course would accord justice to both parties. The court was satisfied that the appellant had neither raised the issue of jurisdiction at trial nor at the first appellate court notwithstanding that it was an essential point. The court accordingly entertained the ground although it hadn’t been raised in the lower courts.

The court further considered whether the magistrate grade one had jurisdiction to entertain the matter. The court held that since the matter had been filed in a district land tribunal, the magistrate grade one exercised jurisdiction under section 76 of the Land Act (as amended by the Land (Amendment) Act 2004) and not under the Magistrates Courts Act. The court was satisfied that the pecuniary jurisdiction of a land tribunal was fifty million shillings whereas the suit land was six million shillings. The court accordingly concluded that the magistrate grade one had jurisdiction to entertain the matter.