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Court of AppealDismissedCivil Appeal 8 of 2018· [2022] KECA 850 (KLR)

Ojwang v Attorney General & 7 others

Court of Appeal
13 May 2022
MNMumbi NgugiPKP. O. KiageFTF. Tuiyott
3,266 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed a landowner's bid to overturn a Tribunal award, ruling that ignoring available appeal routes bars later constitutional claims.

What this practically means

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Executive summary

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The appellant's father purchased land North Wanga/Kholera/588 at a public auction; the appellant was later registered as proprietor. In 2004 the Matungu Land Disputes Tribunal, on a claim by the children of the original borrower, awarded the land back to their father; the award was adopted as a judgment of the Chief Magistrate's Court in 2006, and succession proceedings in 2008 vested the land in the respondents. The appellant did not appeal to the Provincial Appeals Committee, did not seek judicial review, and did not prosecute his objection in the succession cause. In 2016 he filed a constitutional petition before the ELC at Kakamega alleging breach of fair hearing and property rights; Matheka J dismissed it with costs, holding the issues res judicata and no violation established. On appeal, the Court of Appeal (Ngugi JA writing, Kiage and Tuiyott JJA concurring) accepted that the Tribunal had no jurisdiction over titled land, consistent with Joseph Kirui, but distinguished it because the appellant had actively participated in the Tribunal proceedings and had multiple unexplored avenues of challenge over more than ten years. The court endorsed the principle that litigation must end even where injustice resulted from tribunals exceeding jurisdiction, affirmed the res judicata finding, held no evidence supported the claimed rights violations, dismissed the appeal, and directed each party to bear its own costs in light of the Tribunal's jurisdictional excess.

Key legal issues

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01

Jurisdiction of Land Disputes Tribunals over titled land

Holding

Tribunals under the repealed Act had no jurisdiction over claims to title to registered land; their jurisdiction was confined to boundaries, occupation and trespass

Reasoning

The court endorsed its earlier holding that section 3(1) of the Act limited Tribunal jurisdiction to boundary disputes, claims to occupy or work land, and trespass. An award directing transfer of titled land was therefore made without jurisdiction.

p. 5
02

Effect of failure to challenge a void Tribunal award

Holding

Although the award was without jurisdiction, a participant who did not appeal or seek judicial review, and who had an opportunity in succession proceedings, is barred by res judicata

Reasoning

The appellant participated fully in the Tribunal proceedings, was aware of the decision and its adoption, had statutory appeal routes to the Provincial Appeals Committee and the High Court, the judicial review option, and 90 days in the succession cause. His failure to use these avenues meant the ELC correctly found the petition res judicata.

03

Alleged violation of constitutional rights

Holding

The petition failed for want of evidence and specificity in pleading the constitutional violations

Reasoning

Relying on the settled requirement that violations be pleaded with precision, per Mumo Matemu, the court found nothing in the petition or supporting affidavit that could sustain a finding of breach of fair hearing or property rights.

p. 6

Legal principles established

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  • A Land Disputes Tribunal had no jurisdiction over claims to title to registered land, but a party who participated in the proceedings and failed to pursue appeal or judicial review cannot reopen the matter by constitutional petition
  • Res judicata and finality in litigation bar constitutional petitions seeking to relitigate matters where appeal or judicial review avenues were not used

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear its own costs of the appeal

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Land Disputes Tribunal Act No. 18 of 1990section 3(1)
  • Land Disputes Tribunal Act No. 18 of 1990section 8(1)
  • Land Disputes Tribunal Act No. 18 of 1990section 8(9)
  • Constitution of KenyaArticle 23
  • Court of Appeal RulesRule 29(1)
  • Law of Succession ActCap 160

Cases cited (5)

  • Sumaria & Another v Allied Industries Ltd
    (2007) KLR 1

    Duty of a first appellate court to re-evaluate evidence and draw its own inferences

  • Joseph Kirui v Sally Jeptoo Keittany and Mohammed Kiptarus Keittany (administrators of the Estate of Said K. Keitany (deceased)
    Civil Appeal No. 81 of 2013

    Land Disputes Tribunals had no jurisdiction over titled land; award over title null and void

  • Sapientia Khasatshi Shibachi v Boaz Ashiono Shisanya
    [2015] eKLR

    Injustice from Tribunal excess of jurisdiction cannot always be remedied; litigation must end

  • Callen Magoma Omari v. Suneka Land Disputes Tribunal & Others
    Civil Appeal No. 87 of 2012

    Tribunals exceeded jurisdiction causing injustice, but public policy demands an end to litigation

  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR

    Requirement to plead constitutional violations with specificity and precision

On appeal from
Environment and Land Court at Kakamega
ELC Petition No. 22 of 2016
Jurisdiction invoked
First appeal under the Court of Appeal Rules (Rule 29(1)); appellate jurisdiction over an ELC constitutional petition

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, "Ojwang v Attorney General & 7 others", Case Analysis (2022). Civil Appeal 8 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/850/eng@2022-05-13

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