Joseph Maren & 3 others v Ololulunga Division Land Disputes Tribunal & 4 others [2017] KECA 309 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the constitutional petition was the correct vehicle to challenge the Tribunal award and the subordinate court decree
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
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.
The correct approach of the Court of Appeal on a first appeal
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
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.