Otuko v Kinyanjui & another

Sections 8(1) and 8(9) of the repealed Land Disputes Tribunals Act provided the appellate avenues for parties. A non-party like the appellant could not use those avenues, but the Act did not contemplate declaratory suits against adopted awards. Following Catherine C Kittony, the court held the proper remedy for a non-party was judicial review to quash the Tribunal's decision, not a fresh civil suit. The appellant's failure to pursue judicial review was fatal to his claim.

The trial court's analysis, reproduced with approval, recorded three agreements: the 1987 sale to Femina, the 2002 sale by her brothers after her death, and the 2011 sale to the appellant. Applying the maxim that where two equities are equal the first in time prevails, the Judge found the appellant's transaction a nullity. The Court of Appeal found no basis on the record to disturb that conclusion, and the Tribunal's undisturbed award had also favoured the 1st respondent.

The Court perused the pleading and found paragraphs 3-13 mounted a defence while paragraphs 15-18 put forth a counterclaim expressly seeking relief. The learned Judge therefore did not entertain a non-existent pleading, and the ground of appeal failed. The Court also found no finding in the impugned judgment that the appellant had evicted the 1st respondent, contrary to the appellant's submission.

The Court held that once the prior sale to Femina was established, the question of acreage became academic. The history of transactions showed Otiende sold to Femina first and resold to the appellant almost a decade later, and the Tribunal's decision in favour of the 1st respondent remained undisturbed. The appellant's arguments on the size of the land and on the absence of lawful interest passing from the deceased Femina therefore lacked merit.