Rael Muyaka & 7 others v Waitaluk Land Disputes Tribunal Comprising of: Mboto Kidai Ezekiel Kessio & Haruni Kipsugut & another [2016] KECA 63 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a land tribunal decision made against people who were never properly served with court papers and whose case was filed too late.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Tribunal properly heard the dispute in the absence of a filed and served written statement of claim as required by section 3 of the Land Disputes Tribunals Act
- 2.Whether service of the statement of claim and summons on the appellants was proved, given the absence of an affidavit of service
- 3.Whether the claim before the Tribunal was time barred under the Limitation of Actions Act
- 4.Whether the Tribunal proceeded to hear and determine the dispute after the death of Rael Muyaka without substitution
- 5.Whether the High Court erred in refusing an order of certiorari to quash the Tribunal's decision
Key legal issues
#Proof of service of summons and statement of claim
The mandatory affidavit-of-service requirement under Order 5 rule 15 of the Civil Procedure Rules, applicable through section 3(4) of the Land Disputes Tribunals Act, was not complied with; service could not be presumed.
Section 3(4) of the repealed Land Disputes Tribunals Act imported the Civil Procedure Act's service regime. Order 5 rule 15 requires the serving officer to swear and annex an affidavit of service stating the time, manner and identifying details of service. No such affidavit was produced, yet the High Court accepted the second respondent's contention that the appellants were served. Compliance with this mandatory provision was a precondition to the validity of the ex parte Tribunal proceedings, and its absence obligated the court to intervene.
Limitation of actions as a bar to the Tribunal's jurisdiction
The Tribunal had no jurisdiction to entertain a claim for eviction filed in 1998 against persons in occupation since 1971, since such a claim to recover land is barred after twelve years under section 7 of the Limitation of Actions Act.
Section 13(3) of the Land Disputes Tribunals Act expressly excluded claims in respect of which the time for bringing proceedings is barred under any limitation law. The High Court failed to consider section 7 of the Limitation of Actions Act, which bars actions to recover land after twelve years. The appellants had been in occupation since 1971 and the eviction claim was filed in 1998, far beyond the twelve-year period, ousting the Tribunal's jurisdiction.
Proceedings continued after the death of a party
The burial permit showed Rael Muyaka died on 25th November 1998, before the Tribunal heard the dispute and delivered its ruling on 30th September 1999; the High Court never determined this issue.
The documentary evidence established that Rael Muyaka died before the Tribunal determined the dispute. The High Court raised but did not resolve the point, nor did it address the limitation issue. The court treated these unresolved jurisdictional defects, together with the failure of proof of service, as sufficient to demonstrate that the appeal ought to be allowed and the Tribunal's decision quashed by certiorari.
Legal principles established
#- Where a statute requires claims before a tribunal to be served and incorporates the Civil Procedure Act on service, the court must verify compliance with the affidavit-of-service requirements of Order 5 rule 15 of the Civil Procedure Rules.
- Where it is demonstrated that a party to proceedings was not served, an ex parte judgment must be set aside as of right.
- A Land Disputes Tribunal has no jurisdiction to entertain a claim that is time barred under any law relating to limitation of actions, including section 7 of the Limitation of Actions Act.
Court orders
#- 1.The appeal is allowed
- 2.The High Court ruling of 18th December 2001 is set aside
- 3.An order of certiorari is substituted quashing the decision of Waitaluk Land Disputes Tribunal delivered on 30th September 1999 and adopted as judgment in Kitale SRMCC Land Case No. 76 of 1999 on 11th April 2001
- 4.The appellants are awarded the costs of the appeal and the costs in the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kitale
- H.C. Misc. Application No. 102 of 2001
- Jurisdiction invoked
- First appellate jurisdiction over the High Court ruling under the Court of Appeal's statutory appellate powers
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That being the case, the court was under a legal obligation to consider whether the provisions of Order 5 rule 15 of the Civil Procedure Rules regarding filing of affidavits of service had been complied with.
Where it is demonstrated that a party to proceedings has not been served, usually the ex parte judgment is set aside ex debito justitiae.
nothing in this Act shall confer jurisdiction on the Tribunal to entertain proceedings in respect of which the time for bringing such proceedings is barred under any law relating to the limitation of actions
Consequently, the High Court ruling of 18 th December, 2001 is hereby set aside. We substitute therefor an order of certiorari quashing the decision of Waitaluk Land Disputes Tribunal delivered on 30th September, 1999 and subsequently adopted as judgment of the court in Kitale SRMCC Land Case No. 76 of 1999 on 11th April, 2001.
The appellants are awarded the costs of the appeal as well as the costs in the High Court.
Issues in the judgment
#The coram lists seven appellants but only six are named in the cause title (no sixth appellant appears; Florence Namalwa is styled 'SEVENTH APPELLANT' and Thomas Shikuku 'EIGHT APPELLANT').
The Tribunal's ruling date is inconsistently rendered in the cause title area ('Kitale SPM Land Case No. 76 of 1999') and in the orders ('Kitale SRMCC Land Case No. 76 of 1999').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rael Muyaka & 7 others v Waitaluk Land Disputes Tribunal Comprising of: Mboto Kidai Ezekiel Kessio & Haruni Kipsugut & another [2016] KECA 63 (KLR)", Case Analysis (2016). Civil Appeal No. 73 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/63/eng@2016-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.