Republic v Kisumu East District Land Disputes Tribunal, Kisumu Chief Magistrate & Paul Andiego Nelson Andiego exparte John Ouko Onyango & George Oteino Juma (Judicial Review 19 of 2017) [2017] KEELC 1758 (KLR)
The bottom line
#A Kenyan court quashed a land tribunal's award for lack of jurisdiction and made the person who filed the claim pay the winner's legal costs.
What this practically means
#Executive summary
#Key legal issues
#Costs following unconditional concession of a judicial review application against a tribunal award made without jurisdiction
The conceded notice of motion was granted as prayed, and the Interested Party who instituted the proceedings before the tribunal without jurisdiction was ordered to pay the Exparte Applicant's costs as the victorious party.
The tribunal's award had been initiated by the Interested Party's claim over parcels Kisumu/Nyahera/1107 and 2010; the tribunal lacked jurisdiction and its award was adopted in the Chief Magistrate's Court. Both Respondents and Interested Party conceded to quashing. The court held the concession only shortened proceedings, so costs followed under Section 27 of the Civil Procedure Act.
Whether a party who initiates a claim before a forum without jurisdiction can escape costs on the ground that the tribunal's excess of jurisdiction was beyond its control
No. The tribunal would not have made the award had it not been moved by the Interested Party, so the filing party bears the costs.
The court found that the Interested Party initiated the tribunal proceedings as claimant; although his counsel argued the tribunal exceeding jurisdiction was not within his control, the court reasoned the award would never have been made absent his initiating claim, making him the effective cause of the litigation and liable in costs.
Legal principles established
#- A party who initiates proceedings before a forum without jurisdiction is liable for the costs of the successful party's challenge to that forum's award, under Section 27 of the Civil Procedure Act.
Court orders
#- 1.An order of certiorari is issued calling into the court and quashing the award in Kisumu East District Land Disputes Tribunal Case No. 40 of 2011 and the adoption order in Kisumu Chief Magistrate's Court Land Case No. 86 of 2011 forthwith
- 2.The Interested Party to pay the Exparte Applicant's costs
- 3.The file be closed
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court/Environment and Land Court (order of certiorari); costs under Section 27 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kisumu East District Land Disputes Tribunal, Kisumu Chief Magistrate & Paul Andiego Nelson Andiego exparte John Ouko Onyango & George Oteino Juma (Judicial Review 19 of 2017) [2017] KEELC 1758 (KLR)", Case Analysis (2017). Notice of motion dated 2nd May 2012 (Kisumu East Land Disputes Tribunal Case No. 40 of 2011; Kisumu C.M.C. Land Case No. 86 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1758/eng@2017-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.