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ELCOtherEldoret High Court Civil Suit (plaint filed 1 September 2005;确切 number not stated in judgment)· [2013] KEELC 113 (KLR)

Jamin Kiombe Lidodo v Emily Jerono Kiomber & another [2013] KEELC 113 (KLR)

Environment and Land Court at Eldoret (formerly filed in the High Court)
11 July 2013
3,594 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you can still sue to void a Land Disputes Tribunal decision even after the appeal and judicial review deadlines have passed.

What this practically means

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Executive summary

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This is a ruling on two preliminary objections in a suit filed by plaint on 1 September 2005. The plaintiff, formerly registered proprietor of L.R. Moi's Bridge/Moi's Bridge Block 8 (Natwana ADC)/68, alleged that the 1st defendant obtained an award from the Soy Land Disputes Tribunal without notice, which was adopted as a judgment and decree in Eldoret CMCC Award No. 58 of 2002, resulting in his deregistration. He sought declarations that he is the absolute owner and that the Tribunal's deliberations are illegal, null and void, plus a permanent injunction and an order directing the Land Registrar to cancel the 1st defendant's registration. The 1st defendant filed a defence and counterclaim asserting she purchased and originally owned the land, alleging the plaintiff's registration was fraudulent, and seeking eviction, declaration of ownership, and mesne profits. The 2nd defendant (Attorney General, sued for the Tribunal) and the 1st defendant raised preliminary objections contending that the plaintiff's only remedies were appeal under Section 8 of the Land Disputes Tribunal Act or judicial review, both now time-barred, and that the subsisting decree rendered the suit an abuse of process. The court identified two conflicting lines of authority and, aligning with Nambuye J in Daudi Ngetich Kimibei and the Court of Appeal in Robert Entwistle, held that a declaratory suit challenging a Tribunal decision for lack of jurisdiction is competent even after appeal and judicial review periods lapse. It held the award was not extinguished by adoption as a decree. Dulu J's contrary decision in Emily Jepkemei Ngeyoni was respectfully declined. Both preliminary objections were dismissed with costs to the plaintiff; the merits of the jurisdiction question were left for full trial.

Key legal issues

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01

Whether appeal or judicial review are the sole avenues for challenging a Land Disputes Tribunal decision

Holding

They are not; a declaratory suit is also a competent avenue.

Reasoning

The court reviewed two conflicting lines of authority: Dulu J in Emily Jepkemei Ngeyoni upheld a similar preliminary objection holding appeal or judicial review were the only options, while Nambuye J in Daudi Ngetich Kimibei held that once judicial review was time-barred, a declaratory suit remained available. The Court of Appeal in Robert Entwistle also held that availability of judicial review does not oust a declaratory suit. The court aligned itself with the latter line and declined to follow Emily Jepkemei Ngeyoni.

p. 6
02

Effect of adoption of the Tribunal award as a decree of the Chief Magistrate's Court

Holding

Adoption did not extinguish the award; the award remains the foundation of the decree and can be declared void.

Reasoning

The 1st defendant argued, relying on Rebo Karari, that once adopted the award ceased to exist and only the decree remained, challengeable only within six months. The court rejected this, holding that the decree derives its validity from the award, so a declaration that the award is void nullifies the decree and all subsequent administrative actions founded on it. Rebo Karari was distinguished as a judicial review challenge.

p. 6
03

Abuse of process arising from the unexecuted/unset aside decree in Eld. CMCC Award No. 58 of 2002

Holding

Not upheld; the objection fell with the rejection of the argument that the suit was barred.

Reasoning

The 1st defendant's preliminary objection asserted that a decree between the same parties remained in force and unchallenged, rendering the suit an abuse of process. The court held that a declaratory suit challenging the legality of the Tribunal decision underlying that decree is a proper vehicle, and it declined to delve into the merits of the jurisdiction question at the preliminary stage, leaving that for the full hearing.

p. 2

Legal principles established

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  • There is no statutory bar to instituting a civil suit seeking a declaration that a Land Disputes Tribunal's decision was made without jurisdiction, even where the periods for appeal and judicial review have expired.
  • Adoption of a Tribunal award as a decree of the subordinate court does not extinguish the award; if the award is declared void, the decree founded on it also falls.

Court orders

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  1. 1.Both preliminary objections (dated 18 April 2006 by the 2nd defendant and 8 May 2010 by the 1st defendant) dismissed
  2. 2.Costs of the preliminary objections awarded to the plaintiff
  3. 3.Suit to proceed to full hearing

Authorities

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Legislation

  • Land Disputes Tribunal Act, Act No. 18 of 1990 (repealed)Section 7
  • Land Disputes Tribunal Act, Act No. 18 of 1990 (repealed)Section 8
  • Civil Procedure Actmanner of enforcement of decrees (referred to in quoted s.7(2))
  • Civil Procedure RulesOrder 2 Rule 14

Cases cited (6)

  • Emily Chepkemei Ngeyoni & Another vs Nicholas Kipchumba Kogo & Another
    Eldoret HCCC No. 26 of 2001
  • Rebo Karari vs Gatundu Land Disputes Tribunal
    Nairobi High Court Misc Application No. 270 of 2005
  • Daudi Ngetich Kimibei vs Attorney General & Another
    Eldoret HCCC No. 55 of 1998
  • Robert Entwistle & 7 others vs The Registered Trustees of Nairobi Baptist Church & 2 others
    Civil Application No. NAI 312 of 1999
  • Asman Maloba Wepukhulu vs Francis Wakwabubi Biketi
    Civil Appeal No. 157 of 2001
  • Munyui Kahuha vs Nganga Kahuha
    Nairobi High Court Civil Appeal No. 502 of 2000
Jurisdiction invoked
Original civil jurisdiction (suit by plaint seeking declaratory orders); Environment and Land Court at Eldoret

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, "Jamin Kiombe Lidodo v Emily Jerono Kiomber & another [2013] KEELC 113 (KLR)", Case Analysis (2013). Eldoret High Court Civil Suit (plaint filed 1 September 2005;确切 number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/113/eng@2013-07-11

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