Kipkulei Cheserem v Barnaba K. Chelimo & 3 others [2017] KEELC 477 (KLR)
The bottom line
#The High Court dismissed a landowner's attempt to overturn a Land Disputes Tribunal award through a declaratory suit, because he never appealed within the law's set process.
What this practically means
#Executive summary
#Key legal issues
#Availability of a declaratory suit to challenge a Land Disputes Tribunal award
A declaratory suit is not a recognised avenue for challenging a tribunal award; the aggrieved party must appeal to the Appeals Committee under section 8(1) or pursue judicial review
The court relied on section 8(1) of the Land Disputes Tribunal Act, the Paul Muraya Kaguri authority, and the Court of Appeal decision in Florence Nyaboke Machani. The plaintiff neither appealed nor sought judicial review, and the court held that permitting a declaratory suit would offend finality of litigation and public policy.
Effect of failure to appeal against the tribunal award
No appeal having been lodged under section 8(1), the award was adopted by the Iten court and stands as a valid judgment enforceable until set aside
The court found nothing on record showing the plaintiff appealed to the Appeals Committee within thirty days. In the plaintiff's presence and knowledge the award was adopted as judgment. The plaintiff slept on his rights; equity assists the vigilant, not the indolent, and the defendants' rights crystallised.
Whether adverse orders could issue against the Iten court which was not a party
Adverse orders cannot be made against an entity that is not a party to the suit; the decree sought to be impugned issued from the Iten court, which was not joined
The 4th defendant's submissions noted that the plaintiff sought a declaration that the judgment and decree issued in the Iten proceedings were null and void, yet the Iten court was not a party to this suit, relying on the Republic v Registrar of Societies authority that orders cannot be made against a non-party.
Legal principles established
#- Where a statute establishes a dispute resolution mechanism, that mechanism must be followed; a party who fails to follow it cannot claim their rights were denied
- A declaratory suit is not an available remedy to impugn a decision of a district land disputes tribunal; the remedies are appeal under section 8(1) of the Land Disputes Tribunals Act or judicial review
- Allowing a fresh declaratory suit against a decision and valid judgment made under the repealed Land Disputes Act would offend finality in litigation and public policy
- A valid judgment of a court, unless overturned on appeal, remains enforceable irrespective of questions of jurisdiction
Court orders
#- 1.The suit is dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over the suit; dispute concerns challenge to award of Keiyo District Land Disputes Tribunal under the Land Disputes Tribunal Act (repealed)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipkulei Cheserem v Barnaba K. Chelimo & 3 others [2017] KEELC 477 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/477/eng@2017-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.