Elias Noel v Ephraim Dembete Kirogili [2018] KEELC 4188 (KLR)
The bottom line
#A Kenyan tribunal with the wrong number of members had no legal power to decide a land case, so its award was void.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant's application for review of the order adopting the Lugari Division Land Disputes Tribunal award disclosed 'any other sufficient cause' under section 80/Order 45
- 2.Whether the Lugari Division Land Disputes Tribunal was properly constituted with a panel of four members instead of the three or five provided for by the Land Disputes Tribunal Act
- 3.Whether the tribunal's award, being made by an improperly constituted tribunal, was a nullity incapable of adoption as a judgment
- 4.Whether the learned magistrate misdirected herself in dismissing the review application on extraneous grounds
Key legal issues
#Proper constitution of the Land Disputes Tribunal
The tribunal was improperly constituted as a panel of four members instead of the statutory three or five, and therefore lacked jurisdiction; its award was a nullity incapable of adoption.
Section 4 of the Land Disputes Tribunal Act provides each tribunal shall consist of a chairman and either two or four elders, meaning panels of three or five. The record showed four panel members sat. Following authorities including Peter Mmini Shaka and KCB v KNCHR, strict construction of the statute shows no power to sit in panels of four, so the award was null and void.
Review on 'any other sufficient cause'
The magistrate misdirected herself by treating the review application as requiring a new matter or error apparent on the face of the record, whereas lack of jurisdiction from improper constitution of the tribunal was 'any other sufficient cause' warranting review.
Relying on Wangechi Kimita v Mutahi Wakibiru, the words 'for any other sufficient reason' under Order 45 need not be analogous with the other grounds. The jurisdictional defect was a material statutory provision never drawn to the court's attention, and procedural impropriety was a sufficient reason to review the adoption of the award; dismissing the application on extraneous grounds was an error of law.
Whether delay and participation in the tribunal proceedings barred the review
Jurisdiction cannot be conferred by estoppel, consent, acquiescence, default or laches; delay did not cure the fundamental nullity of the tribunal's composition.
The respondent argued the appellant submitted to jurisdiction by participating at tribunal and appeals committee levels and delayed two years before seeking review. The court held jurisdiction cannot be conferred by estoppel or the doctrine of laches, and that delay does not alter the fact that a material statutory provision was not drawn to the court's attention at the original hearing.
Legal principles established
#- A Land Disputes Tribunal must be constituted of a chairman and either two or four elders, i.e. a panel of three or five members; a tribunal of four members is improperly constituted and lacks jurisdiction.
- An award made by a tribunal without jurisdiction is a nullity and incapable of being adopted as a judgment.
- Procedural impropriety in the constitution of a tribunal constitutes 'any other sufficient reason' for review, since that ground need not be analogous with the other review grounds.
Court orders
#- 1.Appeal allowed
- 2.The decision/ruling of the trial magistrate delivered on 8th February 2008 quashed
- 3.Costs of the appeal to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Resident Magistrate's Court at Kakamega
- Kakamega Misc. Civil Application No. 262 of 2001
- Jurisdiction invoked
- First appeal under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules against the ruling of a Resident Magistrate
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find that the award of the Lugari Disputes Tribunal case No. 12 of 2001 is incapable of being adopted as it was made without jurisdiction due to its consitution. The tribunal lacked jurisdiction, its award is a nullity and incapable of being adopted as judgment.
I find that this appeal has merit on these grounds and I allow the same. I quash the decision/ruling of the trial magistrate with costs to the appellant.
Clearly the tribunal was a panel of four members instead of the three or five as provided for by the Act.
Procedural impropriety was most undoubtedly a “sufficient reason” to warrant the court to review its adoption of the award given by the tribunal.
Issues in the judgment
#The judgment variously refers to the appellant as 'Elias Noel alias Musa Akure' and 'ERASTUS NDEI alias MUSA AKURE', and to the respondent as 'Ephraim Dembete Kirogili' and 'Efraim Dembete Kirogoli'.
Internal inconsistency in dates: the order adopting the award is said to have been granted on 17th November 2005, but one passage states the review application filed 4th September 2007 was 'almost two (2) years from the date of the order sought to be reviewed which was granted on 17th November, 2007.'
The lower court case number is given both as 'KAKAMEGA MISC. CIVIL APPLICATION NO. 262 of 2001' and 'KAK MISC. CIVIL APPLICATION NO. 262 of 2001', and a later passage places the 2008 ruling 'at Kakamega in KAK MISC. CIVIL APPLICATION NO. 262 of 2001' while the review application is elsewhere described as filed in the Chief Magistrate's court dated 4th September 2007.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elias Noel v Ephraim Dembete Kirogili [2018] KEELC 4188 (KLR)", Case Analysis (2018). ELC Appeal No. 4 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4188/eng@2018-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.