Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedSecond Appeal, Memorandum of Appeal dated 14th August 2018

Jilo v Sala (Civil Appeal 308 of 2018) [2025] KECA 1194 (KLR)

Court of Appeal
4 July 2025
2,045 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal sent this land dispute back to the High Court because the judge decided the Tribunal's jurisdiction without properly hearing both sides.

What this practically means

#

Executive summary

#
This was a second appeal to the Court of Appeal against the judgment of Cherono J of the Garissa Environment and Land Court dated 21st June 2018. The appellant had filed an award of the Tana North District Land Dispute Tribunal (Madogo Division) in the Chief Magistrate's Court for adoption as an order of the court. The magistrate, Hon. Mburu, allowed the respondent's objection and declared the award a nullity on the ground that the Land Disputes Tribunals Act No. 18 of 1990 had been repealed. On first appeal, the learned Judge dismissed the appeal, holding that although the magistrate erred in law by declining to adopt the award, the Tribunal's determination of land ownership was ultra vires section 3 of the repealed Act. The Court of Appeal, comprising W. Karanja, L. Achode and G. V Odunga JJ A, framed a single issue: whether the learned Judge considered matters he should not have and failed to consider matters he should have. Both parties agreed the learned Judge failed to address the central jurisdictional question - whether the Tribunal's term had expired or was preserved by transitional provisions - though they differed on its content. Applying its settled jurisdiction under section 72(1) of the Civil Procedure Act, and following Mohammed Eltafi, Geo Chem Middle East and Nyutu Agrovet, the Court held that the learned Judge decided the jurisdictional question without hearing the parties. The appeal was allowed and the matter remitted to the Garissa High Court, before any Environment and Land Court Judge other than Cherono J, for determination of the jurisdiction issue. Costs were left to abide the determination of that appeal. The judgment binds lower courts to remit matters where an appellate court finds an unresolved or wrongly declined jurisdictional question.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge considered matters that he should not have and failed to consider matters that he should have, namely the jurisdictional question of whether the term of the Tribunal that gave the award had expired or was preserved by transitional provisions

Key legal issues

#
01

Scope of the second appellate court's jurisdiction

Holding

A second appellate court is confined to matters of law only, unless it is shown that the courts below considered matters they should not have, failed to consider matters they should have, or that the decision is perverse.

Reasoning

Section 72(1) of the Civil Procedure Act restricts the Court of Appeal on a second appeal to questions of law. The Court adopted its prior statements in Moses Segite, Kenya Breweries and Stanley Muriithi to frame its role. The parties agreed the learned Judge failed to address the central jurisdictional issue, engaging this narrow but important review function.

p. 3
02

Whether the learned Judge erred in deciding the Tribunal's jurisdiction without hearing the parties

Holding

Yes. The learned Judge ought to have heard both parties on the jurisdictional question of whether the Tribunal's term had expired and its jurisdiction extinguished at the time of making the award, or was preserved by transitional provisions.

Reasoning

Both parties contended the learned Judge failed to address the central issue in the appeal, though they differed on what it was. The Judge determined that the Tribunal acted ultra vires section 3 of the repealed Act and dismissed the appeal on grounds not argued. The Court agreed with both parties that this jurisdictional question was left unaddressed and unargued, warranting remittal rather than a decision by this Court.

p. 4
03

Remedy where a lower court fails to determine an issue before it

Holding

The appropriate remedy is to remit the matter to the lower court with directions to determine the unresolved jurisdictional issue; a substantive appeal lies only after that.

Reasoning

Relying on Mohammed Eltafi and the Supreme Court decisions in Geo Chem Middle East and Nyutu Agrovet, the Court held that where an appellate court finds a lower court wrongly declined or failed to determine a matter, it must remit the matter directing the lower court to exercise its jurisdiction. Accordingly the appeal was allowed and returned to the Garissa High Court before a different Judge.

p. 4

Legal principles established

#
  • Where an appellate court holds that a lower court wrongly declined to determine a matter in the mistaken belief that it lacks jurisdiction, the matter must be remitted to the lower court for determination of that jurisdictional question.
  • It is a substantial objection to a judgment if it fails to dispose of the questions presented by the parties or leaves issues unresolved.

Court orders

#
  1. 1.The appeal is returned to the Garissa High Court for determination on the issue of jurisdiction
  2. 2.The matter shall be placed before any Judge of the Environment and Land Court, other than E.C Cherono J, for determination
  3. 3.Costs shall abide the determination of the appeal

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Garissa Environment and Land Court (High Court)
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act (second appeal on matters of law only)

Relief refused

#

Substantive determination of the Tribunal's jurisdiction by this Court

The second appeal was confined to matters of law and the jurisdictional question was never argued before the learned Judge; the matter must be remitted.

p. 5

Costs

Costs shall abide the determination of the appeal.

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.

i. The appeal is hereby returned to Garissa High Court for determination on the issue of jurisdiction. ii. The matter shall be placed before any Judge of the Environment and Land Court, other than E.C Cherono J for determination. iii. Costs shall abide the determination of the appeal.
p. 5Final orders - remittal on jurisdiction
it is indeed a substantial objection to a judgment if it does not dispose of the questions that were presented by the parties for determination by the trial court or that the judgment has left certain issues unresolved.
p. 4Failure to determine issues before the court
where an Appellate Court holds that a lower Court has wrongly declined to determine a matter in the “mistaken” belief that it lacks jurisdiction to do so, the Court has to remit that matter to the lower Court, directing it to exercise its jurisdiction.
p. 4Remittal for determination of jurisdiction
This being a second appeal, section 72 (1) Civil Procedure Act restricts this Court’s jurisdiction to matters of law only.
p. 3Second appeal jurisdiction limited to law

Issues in the judgment

#
minor

The judgment does not name the respondent in the appeal; the respondent is identified only through submissions by counsel (Messrs. C.P. Onono & Co. Advocates) and references to the Madogo Land Dispute Tribunal award.

minor

The body of the judgment refers to a ruling by the magistrate dated 2nd March 2012, while the opening paragraph describes the magistrate allowing the motion dated 19th December 2011, suggesting the ruling date; the two dates are used without reconciliation.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jilo v Sala (Civil Appeal 308 of 2018) [2025] KECA 1194 (KLR)", Case Analysis (2025). Second Appeal, Memorandum of Appeal dated 14th August 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1194/eng@2025-07-04

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