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ELCDismissedELC Case (formerly HCC) – transferred to Environment and Land Court in 2012 (new number given in 2012)· [2020] KEELC 1044 (KLR)

Christine J Kirwa v Priscah Jelagat & 2 others [2020] KEELC 1044 (KLR)

Environment and Land Court
5 August 2020
4,584 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a landowner's challenge to a tribunal award because she skipped the appeal process and sued the wrong way.

What this practically means

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Executive summary

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The plaintiff, Christine J. Kirwa, sued seeking declarations that the Uasin Gishu Land Disputes Tribunal lacked jurisdiction, that its award — adopted as a decree in Eldoret CMCC Award No. 17 of 2007 — was ultra vires and null and void, that she owned 5 acres of Kapngetuny Farm L.R No. 8406/06, and a permanent injunction. The 1st defendant, Prisca Jelagat, counterclaimed for a declaration of ownership, eviction of the plaintiff, and enforcement of the adopted tribunal award. The plaintiff's case was that she purchased the land through Peter Arap Kogo from Kabur Muigei and had been in occupation since 1978, and that she was never served with tribunal summons. The 1st defendant claimed through her late husband, Kibii Arap Keino, and relied on the tribunal verdict adopted as a court decree. The 2nd and 3rd defendants (the Tribunal and the Attorney General) did not call evidence; counsel for the latter two argued the suit was incompetent because the Act provided only appeal to the Provincial Appeals Committee or judicial review as challenge mechanisms. The court framed a single threshold issue: whether the suit was properly filed. Holding that an adopted tribunal award becomes a valid and enforceable judgment of the court, and that the Act did not contemplate a declaratory suit to challenge such an award, the court found the plaintiff had bypassed the statutory avenues and abused the court process. It also noted orders could not issue against the non-party Eldoret court. The plaintiff's suit was dismissed with costs to the 1st defendant.

Key legal issues

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01

Whether a tribunal award adopted as a court judgment may be challenged by a declaratory plaint

Holding

No. The Land Disputes Tribunal Act provided the exclusive mechanisms: appeal to the Provincial Appeals Committee within 30 days or judicial review in the High Court. A declaratory suit is an abuse of process.

Reasoning

The court held that the repealed Act had elaborate procedures for challenging tribunal awards, and that once adopted the award ceased to exist and became a judgment of the court. The plaintiff, aware of the tribunal proceedings and having participated, never appealed or sought judicial review but went to sleep and later filed a declaratory suit to circumvent the statutory limitation and leave requirements. Relying on precedent, the court found such suits are not contemplated by the Act and constitute an abuse of process.

p. 5
02

Whether adverse orders can be made against a non-party

Holding

No. The plaintiff sought to impugn the decree in Eldoret CMCC Award No. 17 of 2007, but the Eldoret court was not a party to the suit.

Reasoning

Counsel for the 2nd and 3rd defendants submitted, and the court accepted, that the Eldoret Chief Magistrates Court is not enjoined in this suit and adverse orders cannot issue against an entity that is not a party, relying on Republic v Registrar of Societies. The court found the plaintiff's attempt untenable.

p. 6
03

Whether the court should determine ownership of the suit land on the evidence

Holding

The court declined to enter into the evidence on ownership once it found the suit itself improper.

Reasoning

The court framed a single threshold issue: whether the suit was properly filed. Having determined that the declaratory suit was an impermissible route to challenge the tribunal award, the court held it would not proceed to examine the validity of the tribunal proceedings or the rival ownership claims, and dismissed the suit without determining the 1st defendant's counterclaim evidence.

p. 5

Legal principles established

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  • Once a Land Disputes Tribunal award is adopted as a judgment of the court, it remains a valid and enforceable judgment unless overturned on appeal, and cannot be challenged by a fresh declaratory suit; the statutory mechanisms of appeal to the Provincial Appeals Committee or judicial review must be exhausted

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the 1st defendant

Authorities

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Legislation

  • Law of Succession Actsection 82(a)
  • Land Disputes Tribunal Act (repealed)section 8(1)
  • Land Disputes Tribunal Act (repealed)section 3
  • Land Disputes Tribunal Act (repealed)section 8(1) and (9)
  • Civil Procedure RulesOrder LIII (Order 53)

Cases cited (12)

  • Troustic International Nation and IGRID –vs- Jane Mbuyu and Another
    Civil Appeal No. 145 of 1990 (1993) eKLR
  • Florence Nyaboke Machavi –vs- Mogere Amsoi & 2 Others
    (2014) eKLR
  • Polymaris Mbithe Mutua –Vs- Peter Mwanzia & 2 Others
    (2017) eKLR
  • Gilbert Marua Nhagi –vs- Jane Muthoni Njagi
    (2014) eKLR
  • John Florence Maritime Services Limited & Another –vs- Cabinet Secretary for Transport & Infrastructure & 3 Others
    (2015) eKLR
  • Paul Muraya Kaguri -versus- Simon Mbaria Muchunu
    (2015) eKLR
  • Emily Jepkemei Ngeyoni & another -versus- Nicholas Kipchumba Kogo & another
    Eldoret HCCC No. 26 of 2001
  • O’Reilly -versus- Mackman
    1983 3 All ER 680
  • Republic -versus- Registrar of Societies, Safina Lungazo Aluse, Mathias Abwotho & Joel Onono
    [2014] eKLR
  • Catherine C. Kittony –vs- Jonathan Muindi Dome & 2 Others
    Civil Appeal No. 66 of 2017 (2019) eKLR
  • Republic -versus- Marakwet District Land Disputes Tribunal & 6 others Ex-Parte Shaban Clan & 3 others
    (2016) eKLR
  • Tetu Ole Naborru -versus- Attorney General & 4 Others
    (2010) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (suit transferred from the High Court to the ELC in 2012); declaratory suit challenging a Land Disputes Tribunal award adopted in Eldoret CMCC Award No. 17 of 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Christine J Kirwa v Priscah Jelagat & 2 others [2020] KEELC 1044 (KLR)", Case Analysis (2020). ELC Case (formerly HCC) – transferred to Environment and Land Court in 2012 (new number given in 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1044/eng@2020-08-05

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