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Court of AppealDismissedCivil Appeal No. 179 of 2014· [2017] KECA 309 (KLR)

Joseph Maren & 3 others v Ololulunga Division Land Disputes Tribunal & 4 others [2017] KECA 309 (KLR)

Court of Appeal of Kenya
27 September 2017
2,513 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled that a constitutional petition cannot be used to overturn an existing court decree; you must challenge the underlying tribunal award directly.

What this practically means

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Executive summary

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The appellants, former members of the dissolved Ololoipange and Oloisuisho Group Ranches, filed a constitutional petition in the High Court at Nakuru seeking declarations that the decisions of the Ololulunga Division Land Disputes Tribunal and the Principal Magistrate's Court at Narok were illegal and unconstitutional, a permanent injunction, removal of beacons and certiorari. Their grievance arose from a boundary claim lodged by Mbokishi Group Ranch, in which the appellants were not parties, whose award was adopted in Narok PMCC No. 17 of 2006 and, after review, produced a decree of 6th February 2009 cancelling titles said to fall within Mbokishi's parcel. Omondi, J. dismissed the petition with costs on 15th November 2012. On appeal, the Court of Appeal, composed of G.B.M. Kariuki, F. Sichale and S. ole Kantai, JJ.A, in a single judgment of the court, re-stated the first appellate duty of re-evaluating evidence and held that although the Tribunal proceedings may have breached natural justice because the appellants were not heard, the correct remedy was to challenge the Tribunal award and its confirmation in the Magistrate's Court, not to mount a constitutional petition. Since the decree of 6th February 2009 still subsisted, the petition was futile. The appeal was dismissed with costs, affirming the decision of the High Court.

Key legal issues

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01

Whether the constitutional petition was the correct vehicle to challenge the Tribunal award and the subordinate court decree

Holding

It was not; the appellants should have challenged the Tribunal proceedings and their adoption in Narok PMCC No. 17 of 2006, which decree still subsists

Reasoning

The court found that although the appellants may not have been heard in the Tribunal proceedings, breaching natural justice, the recourse lay in setting aside the award and its confirmation in the Magistrate's Court. Even if the petition succeeded, the decree in PMCC No. 17 of 2006 would remain intact, rendering the petition futile. The petition therefore could not achieve the relief sought.

p. 5
02

The correct approach of the Court of Appeal on a first appeal

Holding

The Court is bound to reconsider and evaluate the evidence itself, drawing its own conclusions, while bearing in mind it neither saw nor heard the witnesses

Reasoning

Relying on the long-standing principles in Selle v Associated Motor Boat Co., the court restated that a first appeal is by way of retrial, requiring reconsideration of the evidence and drawing of independent conclusions, with due allowance for the absence of the advantage of observing witness demeanour, and that findings of fact are not binding where the trial judge misdirected himself.

p. 3

Legal principles established

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  • A constitutional petition cannot be used to set aside or circumvent a subsisting decree of a subordinate court; the proper remedy is to challenge the underlying award and its adoption in that court.
  • On a first appeal, the Court of Appeal has a duty to re-analyse and re-evaluate the evidence tendered in the trial court while making due allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the respondents

Authorities

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Cases cited (2)

  • Selle vs Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs. Mohamed Sholan
    (1955), 22 E.A.C.A 270
On appeal from
High Court of Kenya at Nakuru
High Court Petition No. 8 of 2011
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Maren & 3 others v Ololulunga Division Land Disputes Tribunal & 4 others [2017] KECA 309 (KLR)", Case Analysis (2017). Civil Appeal No. 179 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/309/eng@2017-09-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.