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Court of AppealDismissedCivil Appeal 81 of 2013· [2022] KECA 848 (KLR)

Kirui v Keittany & another (Administrators of the Estate of Said K. Keitany - Deceased)

Court of Appeal
28 April 2022
3,287 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This unanimous Court of Appeal judgment, authored by Mumbi Ngugi, JA, dismissed the appellant's appeal against a High Court ruling (Mwilu, J) which had allowed a constitutional petition declaring the decisions of the Uasin Gishu Land Disputes Tribunal a nullity. The appellant had claimed an acre of land under an alleged 1992 oral contract, lodging the claim before the Tribunal in 2005. The Tribunal found he was entitled only to the half acre he occupied, but then directed the respondent to transfer a further half acre at Kshs. 35,000 if he failed to refund Kshs. 5,000. That award was adopted verbatim by the Chief Magistrate's Court, and enforcement proceedings prompted the respondent's petition alleging violation of his rights to property and fair hearing. The Court held the Tribunal lacked jurisdiction on two independent grounds: section 3(1) of the Land Disputes Tribunal Act confined tribunals to boundary disputes, claims to occupy or work land, and trespass, not contract claims to ownership of registered land; and section 13(3) of that Act, read with section 7 of the Limitation of Actions Act, barred the time-expired claim. Applying M'Marete, Macfoy and the Lillian S doctrine, the Court held the award void ab initio, with all subsequent orders equally null. It rejected the argument that the respondent's failure to pursue the statutory appeal or judicial review closed his avenue of redress, affirming that a void award could not be allowed to stand. The High Court's declarations were affirmed and the appeal dismissed with costs to the respondent.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal over a claim founded on an oral contract for sale of land

Holding

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.

Reasoning

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.

p. 4
02

Limitation as a bar to the Tribunal's jurisdiction

Holding

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.

Reasoning

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.

p. 6
03

Whether the High Court in a constitutional reference under section 84(1) of the former Constitution could make findings on the Tribunal's jurisdiction

Holding

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.

Reasoning

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.

p. 6
04

Adoption of tribunal awards by magistrates' courts without scrutiny of jurisdiction

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • The Constitution of Kenya (repealed)section 84(1)
  • The Constitution of Kenya (repealed)sections 70-83
  • The Constitution of Kenya (repealed)section 75(1)
  • The Constitution of Kenya (repealed)section 75(6)
  • The Constitution of Kenya (repealed)section 77(9)
  • Land Disputes Tribunal Act No. 18 of 1990 (repealed)section 3(1)
  • Land Disputes Tribunal Act No. 18 of 1990 (repealed)section 4
  • Land Disputes Tribunal Act No. 18 of 1990 (repealed)section 13(3)
  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsections 6, 7 and 17
  • Land Control Act
  • Law of Contract Act
  • Registered Land Act (repealed)
  • Court of Appeal RulesRule 29(1)(a)

Cases cited (7)

  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR

    Standard of proof in constitutional petitions, per the appellant

  • Mohamed Abdi Mahamud v. Ahmed Abdullahi Mohamad & 3 others
    Petition 7 of 2018 consolidated with Petition 9 of 2018 [2018] eKLR

    Availability of appellate mechanisms, per the appellant

  • Kamau John Kinyanjui vs Attorney General
    (2005) eKLR

    Limits of jurisdiction under section 84(1) of the former Constitution, per the appellant

  • Omega Enterprises (Kenya) Limited v Kenya Tourist Development Corporation Limited & 2 others
    [1998] eKLR

    Cited with approval Macfoy on nullity of acts done without jurisdiction, per the respondent

  • Macfoy v United African Co. Ltd
    [1961] 3 ALL ER 1169

    An act done without jurisdiction is a nullity, void and incurably bad

  • M'Marete v Republic & 3 others
    (2004) eKLR

    A tribunal exceeds jurisdiction when it awards registered land, a claim to ownership rather than boundaries or occupation

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR

    Jurisdiction is everything; without it a court has no power to make one more step

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

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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, "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.