Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutPetition dated 2nd March 2017, filed 12th May 2017 (Nyahururu)· [2019] KEELC 2890 (KLR)

Samuel Waiya Githukurio v Stephen Mungai Waita & 3 others [2019] KEELC 2890 (KLR)

Environment and Land Court
25 June 2019
2,517 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Once a Land Disputes Tribunal award is adopted as a court decree in Kenya, only that court or an appeal can change it, so the petition was struck out.

What this practically means

#

Executive summary

#
The Petitioner filed a constitutional petition on 12th May 2017 challenging the award of the Ol Kalou Division Land Disputes Tribunal Case No. 28 of 2004, the award of the Nyeri Provincial Land Dispute Tribunal in Appeal No. 31 of 2005, and the decree adopted on 28th October 2009 in Nyahururu Land Disputes Case No. 45 of 2009. He sought declarations that the proceedings contravened his rights under Sections 75 and 77 of the former Constitution, nullification of the awards, decree and consequential orders, and reinstatement of the 11th edition of the R.I.M., alleging his land parcels Nyandarua/Kaimbaga/1339 and 1340 were reduced in acreage without his being heard. During the pendency of the petition, the 1st Respondent, Stephen Mungai Waita, died on 5th February 2018 and Naomi Njoki Mungai was substituted by consent. The 1st Respondent raised a preliminary objection that the Petitioner failed to exhaust legal avenues to challenge the award, having learned of the proceedings upon being served in Nyahururu CMCC No. 228 of 2015. The court applied the Mukisa Biscuits definition of a preliminary objection, found that the tribunal had exceeded its jurisdiction under Section 3 of the Land Disputes Tribunal Act, but held that once the award was adopted as a decree of the Principal Magistrate's Court it transmuted into a judicial determination and could only be varied, set aside or reviewed by that court or an appellate court. Following Florence Nyaboke Machani, the court held the Petitioner, who did nothing upon learning of the decree, could not maintain the petition. The preliminary objection was allowed and the petition was struck out with costs to the 1st Respondent on 25th June 2019.

Key legal issues

#
01

Whether the court has jurisdiction to nullify a tribunal award adopted as a court decree

Holding

The court has jurisdiction to nullify an award made outside a tribunal's jurisdiction, but only where the decision has not been adopted as a judgment of the court; here the award was adopted, so the remedy lies by review or appeal in those proceedings, not by petition.

Reasoning

Section 3 of the Land Disputes Tribunal Act confined tribunals to boundary division, claims to occupy or work land, and trespass. The award directing concealment of a RIM and combination of parcels exceeded that mandate. However, once the Nyeri Provincial Tribunal's award was adopted as a decree by the Principal Magistrate's Court at Nyahururu, it transmuted into a judicial determination and ceased to exist independently, leaving variation, vacation, setting aside or review as the only remedies.

p. 4
02

Whether the Petitioner, having failed to exhaust the legal avenues to challenge the award and decree, could maintain the constitutional petition

Holding

The preliminary objection was upheld; the Petitioner failed to exhaust all legal avenues and the petition was struck out.

Reasoning

The Petitioner knew of the proceedings upon being served with pleadings in Nyahururu CMCC No. 228 of 2015 but did not apply to be enjoined, seek judicial review, or pursue review or appeal against the decree. Relying on Florence Nyaboke Machani v Mogere Amosi Ombui, a valid judgment remains enforceable unless overturned on appeal, and equity assists the vigilant, not the indolent. The declaratory relief sought could not impugn a valid court judgment and decree.

p. 4
03

The proper nature of a preliminary objection

Holding

The court adopted the classic definition in Mukisa Biscuits: a preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct.

Reasoning

The court revisited Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, quoting Law J.A. and Sir Charles Newbold P., to frame the objection as a pure point of law capable of disposing of the suit without ascertainment of facts or exercise of judicial discretion.

p. 3

Legal principles established

#
  • A tribunal award adopted as a judgment of the court ceases to exist on its own and can only be varied, vacated, set aside or reviewed by the same court or an appellate court, not by a declaratory petition.
  • A valid judgment of a court remains enforceable unless overturned on appeal, notwithstanding any issue of jurisdiction, and a party who fails to impugn it in available proceedings comes to court too late.

Court orders

#
  1. 1.The Preliminary Objection is allowed
  2. 2.The Petition is struck out with costs to the 1st Respondent

Authorities

#

Legislation

  • Constitution of Kenya (repealed)Sections 75 and 77(9) (also referred to as Articles 75 and 77)
  • Land Disputes Tribunal Act (repealed)Section 3
  • Civil Procedure ActSection 7

Cases cited (7)

  • Speaker of The National Assembly vs James Njenga Karume
    COA at Nairobi CA No. 92 of 1992
  • Maggie Mwauki Mtalaki vs The Housing Finance Co. of Kenya
    Constitution Petition No. 70 of 2013
  • Lekinyot Ole Lanke vs Attorney General & 2 Others
    [2015] eKLR
  • JMK vs MWM & Another
    [2015] eKLR
  • Multiple Haulers East Africa Ltd vs Attorney General & 10 Others
    [2013] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    (1969) EA 696
  • Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others
    [2014] eKLR
Jurisdiction invoked
Article 165(3) of the Constitution (constitutional petition jurisdiction) - jurisdiction invoked via petition alleging violation of rights under the former Constitution (Sections 75 and 77)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Samuel Waiya Githukurio v Stephen Mungai Waita & 3 others [2019] KEELC 2890 (KLR)", Case Analysis (2019). Petition dated 2nd March 2017, filed 12th May 2017 (Nyahururu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2890/eng@2019-06-25

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