Samuel Maina Njoroge v Land Dispute Tribunal Ruiru & 2 others [2019] KECA 949 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that appearing before a tribunal cannot give it jurisdiction, and an alternative appeal route doesn't automatically block judicial review.
What this practically means
#Executive summary
#Key legal issues
#Whether participation in tribunal proceedings estops a party from challenging jurisdiction
No. Jurisdiction is everything and cannot be conferred by consent, participation or acquiescence; the issue goes to the heart of the matter.
Relying on Samuel Kamau Macharia and Owners of the Motor Vessel 'Lillian S', the Court held that jurisdiction flows only from the Constitution or legislation, that a body cannot arrogate to itself jurisdiction beyond what the law confers, and that the question of jurisdiction is not a mere procedural technicality. Consequently, the appellant's appearance, presentation of evidence and calling of witnesses before the tribunal could not cure the tribunal's want of jurisdiction or estop him from raising it on judicial review.
Effect of failure to exhaust alternative statutory remedies on a judicial review application
Exhaustion is a factor, not an absolute bar; section 9(4) of the Fair Administrative Action Act permits exemption in exceptional circumstances in the interest of justice.
The Court accepted that where Parliament provides a statutory dispute-resolution mechanism, parties must generally exhaust it before resorting to judicial review, which is reserved for exceptional circumstances. However, availability of an alternative remedy is a discretionary factor rather than an absolute bar, and section 9(4) of the Fair Administrative Action Act expressly permits the High Court or a subordinate court to exempt an applicant from the obligation to exhaust where the interest of justice so requires.
The proper approach at the leave stage of judicial review
Leave should be granted where, on the material available, the application is arguable and fit for further investigation at an inter partes hearing; the judge erred by deciding matters reserved for the substantive motion.
Section 9 of the Law Reform Act and Order 53 rule 1(1) of the Civil Procedure Rules mandatorily require leave before judicial review proceedings may commence. At the leave stage the court forms a provisional view, without definitive conclusions, that the application is arguable. The High Court judge went into the merits in detail, considering matters reserved for the main motion, and wrongly concluded the appellant was undeserving of leave; the appellant was not a busybody, crank or mischief-maker.
Legal principles established
#- Availability of alternative statutory remedies is not in itself a bar to judicial review but only a factor for the court's consideration; courts may in exceptional circumstances exempt applicants from the obligation to exhaust remedies under section 9(4) of the Fair Administrative Action Act.
- Submission to a tribunal's jurisdiction by participation, evidence or acquiescence cannot confer jurisdiction where none exists; jurisdiction cannot be conferred by consent or estoppel.
- At the leave stage of judicial review, the court must not embark on a detailed inquiry into matters reserved for the substantive motion; leave is granted where the application is arguable.
Court orders
#- 1.Appeal allowed
- 2.Ruling and orders of 6th March 2009 set aside
- 3.Chamber summons dated 4th December 2008 allowed
- 4.Appellant to file before the Environment and Land Court, Nairobi, a notice of motion for judicial review within 21 days from the date of the judgment
- 5.No orders as to costs
- On appeal from
- High Court at Nairobi
- H.C. Misc Civil Appl. No. 106 of 2008
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over appeals from the High Court (first appellate court over the High Court's refusal to grant leave for judicial review), under the Law Reform Act and Court of Appeal jurisdiction provisions
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ouya & another v Oseko & 4 others (Civil Appeal E697 & E715 of 2021 (Consolidated)) [2025] KECA 1724 (KLR)[2025] KECA 1724 (KLR)24 Oct 2025
- Kinoro v Land Registrar Murang’a & another[2023] KEELC 18483 (KLR)29 Jun 2023
Cite this brief
#Cite this brief
Caselaw, "Samuel Maina Njoroge v Land Dispute Tribunal Ruiru & 2 others [2019] KECA 949 (KLR)", Case Analysis (2019). Civil Appeal No. 58 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/949/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.