Munga & 9 others v Nyamawi & 5 others (Civil Appeal E014 of 2021) [2023] KECA 1321 (KLR)
The bottom line
#The Court of Appeal dismissed landowners' challenge to titles, confirming a tribunal decision made without jurisdiction is a nullity that courts can simply ignore.
What this practically means
#Executive summary
#Key legal issues
#Validity of verifying affidavit sworn before an advocate later on record
The counterclaim was not fatally defective; the prohibition in the proviso to section 4 of the Oaths and Statutory Declarations Act applies only where the commissioning advocate is acting for a party or interested at the time of commissioning.
The proviso's bar stems from the advocate's representation or interest in the matter at the time of commissioning. Where the advocate is instructed only later, the pleading cannot be rendered defective by the subsequent coming on record, since an advocate cannot foretell future retention when commissioning an affidavit.
Res judicata and jurisdiction of the Land Disputes Tribunal
The Tribunal's award in Kaloleni Land Award No. 14 of 1996 was issued without jurisdiction over a claim of ownership of registered land and was therefore null and void ab initio; res judicata could not be founded on it and no judicial review was needed to disregard it.
Res judicata presupposes a final judgment on the merits by a court or tribunal of competent jurisdiction. The Tribunal exceeded the mandate under Section 3(1) of the Land Disputes Tribunal Act by awarding ownership of registered land. A void act is incurably bad; the trial Judge was entitled to decline to give it legal recognition and effect without an express order setting it aside.
Evidence of the alleged welcome of the respondents' forefathers
The learned Judge cannot be faulted for finding no proper evidence supported the allegation; the only evidence was the 1st appellant's hearsay account of events before his birth.
The 1st appellant, born in 1945, admitted he was only told the story by his grandfather. Both parties were found to have been allocated the land they occupied prior to adjudication, and the registration of the respondents' relatives followed the adjudication exercise under the Land Adjudication Act, Cap 284.
Raising Malindi Civil Appeal No. 14 of 2002 for the first time on appeal
The issue was not raised before the trial court and cannot be urged on appeal; in any event, that decision only dealt with whether the magistrate could set aside the Tribunal's proceedings, not the correctness of the award.
A party cannot fault a judge on an issue never placed before him. Appellate practice forbids new points unless the evidence conclusively supports them, for fairness and to avoid prejudice. The 2002 decision did not dispose of the issues before the learned Judge.
Limitation defence against the counterclaim
The appellants did not plead limitation in their defence to counterclaim as required by Order 2 rule 4(1), so the trial court was not obliged to deal with it and the learned Judge committed no error.
Limitation is a waivable defence that must be specifically pleaded; pleadings define and delimit the matters in controversy. Raising it at the tail end of submissions or on appeal deprives the other side of the opportunity to adduce evidence on facts that might revive or except the claim. Parties set the agenda by their pleadings.
Legal principles established
#- An advocate's bar to commissioning an affidavit applies only where the advocate is on record or interested at the time of commissioning; a pleading sworn before an advocate not then on record is not rendered defective by the advocate's later coming on record.
- Res judicata can only apply where the earlier decision was rendered by a court or tribunal of competent jurisdiction; a null award cannot found res judicata.
- An order made without jurisdiction is void and a nullity; no order of the court is needed to set it aside, and a court may simply decline to give it effect, including where the proceedings are those of an inferior tribunal.
- A point of law not raised in the court below should not be permitted on appeal unless the evidence establishes beyond doubt that the facts, if fully investigated, would have supported the new plea.
- The defence of limitation must be specifically pleaded under Order 2 rule 4(1) of the Civil Procedure Rules; a party who has not pleaded it is not entitled to rely on it, and it may be waived.
- As a first appellate court, the Court of Appeal must re-evaluate the evidence and draw its own conclusions while making allowance for the trial court's advantage of seeing and hearing the witnesses.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondents
- On appeal from
- Environment and Land Court at Malindi
- Malindi ELC Land Case 32 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Environment and Land Court (specific appellate provision not stated in the judgment)
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.
- Saleem Ghalia, Wahida Ghalia & Mohammed Ayub Mussa Khamisa (Suing as Administrators of the Estate of Sadiq Ghalia (Deceased)) v Kwale District Land Registrar & 5 Others[2026] KEELC 6168 (KLR)23 Sept 2026applied
- Nickson Dick Olutukai v Apollo M Kingori[2026] KECA 970 (KLR)15 May 2026
Cite this brief
#Cite this brief
Caselaw, "Munga & 9 others v Nyamawi & 5 others (Civil Appeal E014 of 2021) [2023] KECA 1321 (KLR)", Case Analysis (2023). Civil Appeal (from Malindi ELC Land Case 32 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1321/eng@2023-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.