Jilo v Sala
The bottom line
#Kenya's Court of Appeal sent this land dispute back to the High Court because the judge decided the Tribunal's jurisdiction without properly hearing both sides.
What this practically means
#Executive summary
#Key legal issues
#Scope of the second appellate court's jurisdiction
A second appellate court is confined to matters of law only, unless it is shown that the courts below considered matters they should not have, failed to consider matters they should have, or that the decision is perverse.
Section 72(1) of the Civil Procedure Act restricts the Court of Appeal on a second appeal to questions of law. The Court adopted its prior statements in Moses Segite, Kenya Breweries and Stanley Muriithi to frame its role. The parties agreed the learned Judge failed to address the central jurisdictional issue, engaging this narrow but important review function.
Whether the learned Judge erred in deciding the Tribunal's jurisdiction without hearing the parties
Yes. The learned Judge ought to have heard both parties on the jurisdictional question of whether the Tribunal's term had expired and its jurisdiction extinguished at the time of making the award, or was preserved by transitional provisions.
Both parties contended the learned Judge failed to address the central issue in the appeal, though they differed on what it was. The Judge determined that the Tribunal acted ultra vires section 3 of the repealed Act and dismissed the appeal on grounds not argued. The Court agreed with both parties that this jurisdictional question was left unaddressed and unargued, warranting remittal rather than a decision by this Court.
Remedy where a lower court fails to determine an issue before it
The appropriate remedy is to remit the matter to the lower court with directions to determine the unresolved jurisdictional issue; a substantive appeal lies only after that.
Relying on Mohammed Eltafi and the Supreme Court decisions in Geo Chem Middle East and Nyutu Agrovet, the Court held that where an appellate court finds a lower court wrongly declined or failed to determine a matter, it must remit the matter directing the lower court to exercise its jurisdiction. Accordingly the appeal was allowed and returned to the Garissa High Court before a different Judge.
Legal principles established
#- Where an appellate court holds that a lower court wrongly declined to determine a matter in the mistaken belief that it lacks jurisdiction, the matter must be remitted to the lower court for determination of that jurisdictional question.
- It is a substantial objection to a judgment if it fails to dispose of the questions presented by the parties or leaves issues unresolved.
Court orders
#- 1.The appeal is returned to the Garissa High Court for determination on the issue of jurisdiction
- 2.The matter shall be placed before any Judge of the Environment and Land Court, other than E.C Cherono J, for determination
- 3.Costs shall abide the determination of the appeal
- On appeal from
- Garissa Environment and Land Court (High Court)
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal on matters of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jilo v Sala", Case Analysis (2025). Second Appeal, Memorandum of Appeal dated 14th August 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1194/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.