Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutNot stated in judgment· [2021] KEELC 1520 (KLR)

Eric Ongubo Makana v Mellen K. Nyabwari [2021] KEELC 1520 (KLR)

Environment and Land Court
7 October 2021
MKMUGO KAMAU
1,109 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A landowner lost an eight-year court battle because they challenged a tribunal land award through the wrong legal procedure, and the court struck everything out.

What this practically means

#

Executive summary

#
The Plaintiff filed suit on 15/11/2013 seeking a declaration that the Award of the Rigoma Land Disputes Tribunal, filed at Keroka Senior Resident Magistrate's Court on 04/02/2005 and adopted on 03/05/2005, together with the resulting decree directing equal sharing of parcel No. EAST KITUTU/BOTABORI II/1327, was null and void for lack of jurisdiction. The Defendant raised a Preliminary Objection on 21/10/2020, contending that a specific procedure existed for challenging awards of the repealed Land Disputes Tribunal Act No. 18 of 1990 and that the court lacked jurisdiction to issue the orders sought by plaint. The court framed the sole issue as whether it had jurisdiction to entertain the suit and, if not, whether it should be struck out. Relying on section 7(2) of the repealed Act, the court noted that a party aggrieved by a Tribunal decision had 30 days to appeal to the Appeals Committee, and thereafter 60 days to appeal to the High Court on a certified point of law. The Plaintiff had never appealed. The court held, applying Mukisa Biscuit and Owners of the Motor Vessel 'Lillian S', that where the law has established a procedure, parties are bound to follow it; the proper course would have been judicial review, not a plaint. Holding that it had no jurisdiction, the court struck out the suit as incurably defective and awarded the Defendant the costs of the Preliminary Objection and the entire suit.

Key legal issues

#
01

Jurisdiction to quash a Land Disputes Tribunal award adopted as a decree

Holding

The ELC has no jurisdiction to entertain a challenge brought by way of Plaint; the statutory appeal procedure (Appeals Committee, then High Court on a certified point of law) is exclusive

Reasoning

The repealed Land Disputes Tribunal Act set out a self-contained dispute resolution mechanism: appeal to the Appeals Committee within 30 days, then to the High Court on a point of law within 60 days with certification. The Plaintiff never appealed. A challenge to the validity of the adopted award should have been by judicial review, not a fresh plaint. A court without jurisdiction must down its tools.

p. 2
02

Nature of a preliminary objection

Holding

The jurisdictional issue qualified as a valid preliminary objection since it was pleaded and arose clearly from the pleadings and could dispose of the suit

Reasoning

Relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court found the jurisdictional point was pleaded in the Defence and evident from paragraphs 4 to 8 of the Plaint, and that it could dispose of the entire suit without traversing the merits of the Tribunal's award.

p. 2

Legal principles established

#
  • Where the law has established a procedure to resolve disputes, parties are bound to follow that procedure
  • Jurisdiction is fundamental; a court without jurisdiction must down its tools

Court orders

#
  1. 1.The suit is struck out for want of jurisdiction
  2. 2.The Defendant is awarded the costs of the Preliminary Objection as well as the entire suit

Authorities

#

Legislation

  • Land Disputes Tribunal Act No. 18 of 1990 (now repealed)Section 4(2)
  • Land Disputes Tribunal Act No. 18 of 1990 (now repealed)Section 7(2)
  • Civil Procedure ActNot specified (enforcement of decree)

Cases cited (2)

  • Mukisa Biscuit Manufacturing Co. Ltd =Vrs= West End Distributors Ltd
    (1969) E.A.
  • Owners of the Motor Vessel "Lillian S" =Vrs= Caltex Oil (Kenya) Ltd
    (1989)
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes; suit challenged adoption of a Land Disputes Tribunal award under the repealed Land Disputes Tribunal Act No. 18 of 1990

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Eric Ongubo Makana v Mellen K. Nyabwari [2021] KEELC 1520 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1520/eng@2021-10-07

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