Kiplagat v Bartenge (Civil Appeal 357 of 2013) [2016] KECA 346 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a land tribunal award made by non-gazetted members without proper service is a nullity, even years later.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave to apply for judicial review was sought outside the statutory six-month period
- 2.Whether the prayers in the notice of motion had to correspond to the relief in the statement accompanying the application for leave
- 3.Whether failure to join the Chairman of the Tribunal as a respondent was fatal
- 4.Whether the respondent was duly served with the claim before the Tribunal
- 5.Whether the Tribunal was properly constituted given non-gazettement of its members
- 6.Whether inordinate delay in prosecuting the application could bar an order of certiorari quashing a null award
Key legal issues
#Validity of service of the claim before the Tribunal
Service by an unnamed village elder, who is not an authorized process server, without an affidavit of service, was invalid
Order 5 of the Civil Procedure Rules requires service by a person duly authorized by the court, such as an advocate or approved advocate's clerk, and requires an affidavit of service stating the time and manner of service. The Tribunal record showed service by an unnamed village elder and no affidavit of service was sworn and filed. The appellant led no evidence of valid service. The proceedings were therefore conducted in the respondent's absence without due process.
Constitution of the Tribunal
The three members who made the award had not been gazetted for Trans-Nzoia Registration District, so the decision was a nullity
The respondent annexed a Kenya Gazette showing appointed panel members for various Registration Districts, and none of the three members who made the impugned decision appeared for Trans-Nzoia. The appellant said nothing in reply on this issue. A decision by unauthorized persons is a nullity and certiorari properly issued.
Effect of delay on an application for certiorari to quash a null award
Inordinate delay in prosecuting the application does not bar certiorari where the decision quashed is a nullity
The application for leave was filed within six months of the Tribunal's award; the delay arose in obtaining leave, after the award had been adopted as judgment, a decree issued and executed. While the court was concerned by the delay, delay per se cannot bar quashing a null award, and the resultant decree is equally a nullity.
Scope of judicial review under the Fair Administrative Action Act, 2015
Section 11 of the Act has widened judicial review remedies beyond the decision-making process, but the court declined to declare the parties' rights on the facts
Prior to the Act, judicial review was strictly limited to the decision-making process, not the merits. Section 11 now permits courts to declare the rights of parties in respect of matters to which administrative action relates. However, as other avenues exist for determining ownership of the suit land, a declaration would be prejudicial and was refused.
Legal principles established
#- A decision made by persons not duly appointed or gazetted as members of a tribunal is a nullity in law
- Where a decision is a nullity, delay in prosecuting the application for certiorari cannot bar its quashing, and the resultant decree falls with it
- Proof of service of court process is critical in all judicial or quasi-judicial proceedings; an ex parte decision made without due process may be set aside as of right
- Under section 11 of the Fair Administrative Action Act, the scope of judicial review remedies has widened beyond the decision-making process to include declaring the rights of parties
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appeal/appellate jurisdiction of the Court of Appeal against a High Court judicial review ruling (specific provision not stated in the judgment)
Relief refused
#Appellant's prayer to overturn the High Court's order of certiorari and reinstate the Tribunal's award
The Tribunal was not properly constituted and the respondent was not served; the award was a nullity
Declaration of the parties' rights over the suit land
Other avenues exist for determining ownership and a declaration would be prejudicial
Costs
Appeal dismissed with costs to the respondent
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.
It is trite law that where a decision is arrived at contrary to statutory provisions or without jurisdiction, an order of certiorari would issue to quash the decision.
Proof of service of court process is critical in all judicial or quasi-judicial proceedings.
The High Court was therefore right in arriving at the conclusion that a decision made by unauthorized persons is a nullity in law.
Since the award was a nullity, so was the resultant decree that was executed.
Consequently, this appeal is dismissed with costs to the respondent.
Issues in the judgment
#The judgment does not state the case title, appeal number or neutral citation anywhere in the text supplied
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiplagat v Bartenge (Civil Appeal 357 of 2013) [2016] KECA 346 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/346/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.