Kirui v Keittany & another (Administrators of the Estate of Said K. Keitany - Deceased)
The bottom line
#Kenya's Court of Appeal confirmed that a tribunal's decision made without jurisdiction is a nullity that no court order is needed to set aside.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Land Disputes Tribunal over a claim founded on an oral contract for sale of land
The Tribunal had no jurisdiction to determine contract claims for sale of land or to direct transfer of land at a set price; its award was a nullity.
Section 3(1) of the Land Disputes Tribunal Act confined tribunals to boundary disputes, claims to occupy or work land, and trespass. The appellant's claim was founded on an alleged oral contract for sale of land, a claim to ownership. The Tribunal's direction to transfer a further half acre at a price it fixed was therefore in excess of jurisdiction, following M'Marete v Republic, and void under Macfoy.
Limitation as a bar to the Tribunal's jurisdiction
Even if the Tribunal had jurisdiction over title, the claim lodged 13 years after the alleged 1992 contract was time-barred under section 7 of the Limitation of Actions Act, which by section 13(3) of the Tribunal Act bound tribunals.
Section 7 bars actions to recover land after twelve years. Section 13(3) of the repealed Land Disputes Tribunal Act expressly denied tribunals jurisdiction over time-barred proceedings. The claim lodged in 2005 over a 1992 contract was therefore doubly insupportable, depriving the Tribunal of jurisdiction on a second independent plank.
Whether the High Court in a constitutional reference under section 84(1) of the former Constitution could make findings on the Tribunal's jurisdiction
The High Court cannot be faulted; a patent injustice arising from a void award could not be allowed to stand merely because the respondent had not pursued the statutory appeal or judicial review.
The appellant argued the High Court, hearing a constitutional reference, could not determine merits or jurisdiction. The Court held that accepting the argument would mean permitting enforcement of an award made without jurisdiction, an outcome finding no support in law or justice. While a constitutional reference was not the ideal mechanism, the High Court's decision stood in the peculiar circumstances.
Adoption of tribunal awards by magistrates' courts without scrutiny of jurisdiction
The procedure under the Act required verbatim adoption of awards without consideration of merits or jurisdiction, an unfortunate feature that allowed void awards to be clothed as court orders.
Once the award was placed before the Chief Magistrate's Court it was adopted verbatim as an order of the court without consideration of the merits or the Tribunal's jurisdiction. Subsequent orders emanating from a void award were themselves null and void, yet enforcement proceeded, threatening the respondent with arrest and prompting the petition.
Legal principles established
#- A tribunal's award made without jurisdiction is a nullity, void ab initio, and all subsequent orders founded on it are equally null and void; no order of court is needed to set it aside.
- Land Disputes Tribunals under section 3(1) of the repealed Act had jurisdiction only over boundary disputes, claims to occupy or work land, and trespass - not claims to ownership or contracts for sale of land.
- Land Disputes Tribunals were bound by the Limitation of Actions Act and could not entertain time-barred claims.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- High Court of Kenya at Eldoret
- Constitutional Reference No. 9 of 2008
- Jurisdiction invoked
- First appeal under the Court of Appeal Rules from a High Court constitutional reference decided under sections 75(1), 77(9) and 84(1) of the former Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirui v Keittany & another (Administrators of the Estate of Said K. Keitany - Deceased)", Case Analysis (2022). Civil Appeal 81 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/848/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.