Samuel Waiya Githukurio v Stephen Mungai Waita & 3 others [2019] KEELC 2890 (KLR)
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
#Key legal issues
#Whether the court has jurisdiction to nullify a tribunal award adopted as a court decree
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.
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.
Whether the Petitioner, having failed to exhaust the legal avenues to challenge the award and decree, could maintain the constitutional petition
The preliminary objection was upheld; the Petitioner failed to exhaust all legal avenues and the petition was struck out.
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.
The proper nature of a preliminary objection
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.
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.
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.The Preliminary Objection is allowed
- 2.The Petition is struck out with costs to the 1st Respondent
- 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.