Jackson Mwangi Gathuna (Suing as the Administrator of the Estate of the Late Shem Gathuna Thiongo) & 2 others v National Irrigation Board (Through the Manager Mwea Irrigation Settlement Scheme) & 3 others; Gathuna & another (Interested Parties)
The bottom line
#A Kenyan court dismissed a family's land dispute petition because they skipped the required tribunal appeal process before going to court.
What this practically means
#Executive summary
#Key legal issues
#Competence of the constitutional petition
The petition was unsustainable because the Petitioners failed to exhaust the appeal and judicial review remedies available under the Land Disputes Tribunal Act (repealed)
The court held that the Tribunal award, adopted as judgment by the Magistrate's Court, could only be challenged by appeal to the Appeals Committee under Section 8(1), to the High Court under Section 8(9), or by judicial review. No such challenge was mounted, so the decisions remained valid and the constitutional petition could not circumvent the statutory scheme.
Whether the 1st Respondent infringed the Petitioners' rights by cancelling Tenant Cards and Licenses
The 1st Respondent acted lawfully in implementing a valid, unvaried and unset-aside court decree
The NIB was not party to the Tribunal proceedings but was served with the decree in Wang'uru SRMC Arbitration Case No. 5 of 2007 and was obligated to comply. Since the decree was never varied or set aside, implementing it could not amount to a constitutional violation.
Whether the adoption of the Tribunal award after the deceased's death rendered it a nullity
No - the award was made in 2007 during the deceased's lifetime and was never challenged by him; the Magistrate's role was merely to enter judgment in terms of the award
The court noted the deceased never challenged the award between 2007 and 2011, and that at adoption on 20 September 2011 the deceased was represented by counsel, indicating the Petitioners and 2nd Interested Party were aware of the proceedings. The Magistrate had no mandate to alter the award.
Res judicata / abuse of process arising from prior Petition No. 2 of 2015
The court noted a prior constitutional petition by the Petitioners on the same subject matter was dismissed for being incompetent and misconceived, supporting the 1st Interested Party's res judicata objection
The 1st Interested Party argued the instant petition was res judicata given the earlier ELC Petition No. 2 of 2015 seeking to quash Wang'uru Arbitration Cause No. 5 of 2007. The court recorded that petition was dismissed, though its ultimate dismissal rested on the exhaustion doctrine rather than res judicata.
Legal principles established
#- Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed before invoking the court's jurisdiction
- The exhaustion doctrine requires an alternative statutory dispute-resolution procedure to be exhausted before the court's jurisdiction is invoked
- Where no appeal is preferred against a Land Disputes Tribunal award adopted as judgment, the decision becomes final and enforceable
Court orders
#- 1.The petition is dismissed for lack of merit
- 2.Each party to bear their own costs of the petition
- Jurisdiction invoked
- Constitutional petition under Articles 47, 48 and 50 of the Constitution; Environment and Land Court jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Mwangi Gathuna (Suing as the Administrator of the Estate of the Late Shem Gathuna Thiongo) & 2 others v National Irrigation Board (Through the Manager Mwea Irrigation Settlement Scheme) & 3 others; Gathuna & another (Interested Parties)", Case Analysis (2023). Constitutional Petition 2 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21718/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.