https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1143

Anyuor & another v Chief Executive Officer, National Irrigation Authority & another (Civil Appeal E065 of 2026) [2026] KECA 1143 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1143 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal E065 of 2026 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA June 12, 2026 Between Benard Otieno Anyuor 1st Appellant Anyuor Nicholas Odhiambo 2nd Appellant and Chief Executive Officer, National Irrigation Authority 1st Respondent National Irrigation Authority 2nd Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court of Kenya at Migori (Nyagaka, J.) dated 9th March 2026 in ELCA No. E041 of 2025) Judgment 1.This is a second appeal from the judgment of the Environment and Land Court of Kenya at Migori (Nyagaka J,) (the first appellate court) dated 6th March 2026. In that judgment, the first appellate court dismissed an appeal by Benard Otieno Anyuor and Anyuor Nicholas Odhiambo, (the appellants) against the judgment of Land Acquisition Tribunal (the Tribunal) that sustained a preliminary objection that the Tribunal did not have jurisdiction to grant orders the appellants had sought. 2.The appellants filed an Originating Motion (the motion) dated 25th September 2025 before the Tribunal, seeking to enforce taxed and certified costs the Tribunal had awarded them in (Ngoje & 6 others v National Irrigation Authority & another (Tribunal Case E004 of 2024 -consolidated with other matters), contending that the Tribunal had a duty to enforce its decisions, orders and judgments to ensure compliance. 3.The respondents raised a preliminary objection challenging the jurisdiction of the Tribunal to grant judicial review orders. Their argument was that only the High Court has power under sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, to grant prerogative orders of certiorari, prohibition and mandamus, or under Article 165 (6) and (7) of the Constitution which vests the High Court with supervisory jurisdiction over subordinate courts and other bodies, including tribunals and may thus, issue prerogative orders. In its decision dated 8th December 2025, the Tribunal upheld the preliminary objection and struck out the motion. 4.The appellants were dissatisfied and filed an appeal before the first appellate Court being ELC Appeal No E041 of 2025 through a memorandum of appeal dated 10th December 2025, challenging the decision of the Tribunal. The first appellate court heard the appeal and, in its judgment dated 9th March, 2026, dismissed the appeal and upheld the decision of the Tribunal that it has no jurisdiction to grant judicial review orders to enforce orders on costs or make any findings on constitutional violations, except to determine complaints arising under articles 23(2) and 47(3) of the Constitution relating to compulsory acquisition of land. 5.Undeterred, the appellants have now filed a second appeal before this Court through a memorandum of appeal dated 19th March 2026, raising some 18 or so, grounds of appeal challenging the decision of the first appellate court. 6.When this appeal came for plenary hearing on 4th May 2026, learned counsel Mr. Odero held brief for Ms. Awour counsel for the appellants while Mr. Ochola learned counsel was present for the respondents. Both counsel relied on their written submissions dated 16th April 2026 and 30th April 2026, respectively, with limited oral highlights. 7.It was argued on behalf of the appellants, that the first appellate court fell into error in upholding decision of the Tribunal, taking the view, that under section 11(1) of the Fair Administrative Actions Act, a court or tribunal can grant reliefs, including judicial review orders and therefore, the orders they sought before the Tribunal to compel the respondents to pay costs, fall within the jurisdiction of the Tribunal and are grantable under section 11(1) (e) of that Act. The appellants further argued that the Tribunal has jurisdiction to grant reliefs specified in Articles 23(3) and 47(3) of the Constitution as read with section 133 C (8) of the Land Act, where a fundamental right and freedom is violated since the Constitution does not limit judicial review orders to the High Court only. 8.The appellants maintained that sections 133C of the Land Act and 11(1) of the Fair Administrative Action Act confer on the Tribunal power to issue the orders they had sought in the motion, the Tribunal erred in striking out the motion on the basis that only the High Court can issue prerogative orders under Order 53 of the Civil Procedure Rules and, as a result, abdicated its mandate. They relied on the decision of James Gacheru Kariuki & 22 others v Kiambu County Assembly & 3 others [2017] eKLR for the proposition that a litigant invoking the provisions of the Fair Administrative Action Act is not bound by the common law technicalities of Order 53 of Civil Procedure Rules and sections 8 and 9 of the Law Reform Act. They again relied on Telkom Kenya Limited v John Ochanda [2014] eKLR, for the holding that upon delivering its judgment, a court does not disengage from its decisions but retains inherent powers to oversee its execution and enforcement thereof. 9.The appellants further argued, relying on Selle v Associated Motor Boat Company Ltd [1968] EA 123, that the first appellate court failed to discharge its mandate of reconsidering and reappraising itself with the record so as to appreciate the errors the Tribunal committed since the preliminary objection was raised on an issue that had not been pleaded. They relied on the decision in Republic v Permanent Secretary Ministry of State for Provincial Administration and Internal Security Ex-parte Stephen Njuguna Ndungu [2012] eKLR, for the proposition that once sections 21(3) and 21(4) of the Government Proceedings Act are satisfied, the duty to pay the decretal sum ceases to be an administrative discretion and crystallizes into statutory public duty. 10.They complained that the first appellate court, just like the Tribunal, adopted a narrow and restrictive interpretation thereby trivialized their constitutional right to execution and, as a result, abdicated its appellate mandate. They urged this Court to allow this appeal and affirm their submission that under section 133C of the Land Act read with the Fair Administrative Actions Act and the Rules made thereunder, the Tribunal has jurisdiction to enforce its decisions. 11.The respondents opposed this appeal, arguing that the appeal lacks merit, jurisdiction of a court or a tribunal is derived from the Constitution, statute or both and without jurisdiction, a court (tribunal) cannot take any further step in a matter. They relied on the decisions in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) and Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR). 12.The respondents posited that under section 133 C of the Land Act, the jurisdiction of the Tribunal is limited to hearing and determining appeals from decisions of the National Land Commission (the Commission) over the process of compulsory acquisition of land yet the appellants sought an order of mandamus to enforce the Tribunal’s decision on costs, a jurisdiction that is reserved for the High Court under sections 8 and 9 of the Law Reform Act as read with Order 53 of the Civil Procedure Rules, and Article 165 (6), (7) of the Constitution to grant judicial review orders. They relied on Republic v Kenya National Examinations Council exparte Gathenji and Others, (Civil Appeal No 234 of 1996) and Republic v Permanent Secretary, Ministry of State for Provincial Administration & Integrity Security exparte Fredrick Manoah Egunza [2012] eKLR, for the proposition that an order of mandamus is in the nature of a command from the High Court directed to a person, or tribunal, requiring him or them to do or perform some specified duty pertaining to his or their office as a public duty, and urged this Court to dismiss the appeal. 13.This being a second appeal, our duty is strictly confined to considering questions of law. In a second appeal, this Court cannot re-evaluate the evidence, or disturb concurrent findings of fact by the lower courts, unless those factual conclusions are perverse or unsupported by any evidence. In other words, the duty of the second appellate court is to determine matters of law only unless it is shown that the courts below considered matters they should not have considered, or failed to consider matters they should have considered, or looking at the decision as a whole, it is perverse. (Otieno, Ragoti & Company Advocates v National Bank of Kenya Limited [2020] eKLR). 14.We have considered the appeal, arguments made on behalf of the parties, perused the record, the impugned decision of the first appellate court as well as the many grounds of appeal in the memorandum of appeal. The grounds of appeal are mainly argumentative, repetitive and clearly contrary to rule 88(1) of the Rules of this Court and the innumerable decisions of the Court that speak to the fact that a memorandum of appeal should concisely set forth under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongly decided and the nature of the order an appellant proposes to ask the Court to make. (See William Koross v Hezekiah Kiptoo Kimue & 4 others, (Civil Appeal No. 223 of 2013), Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR). 15.Despite the number, the grounds of appeal deal with only one core issue, namely; whether the first appellate court erred in upholding the decision of the Tribunal. Put differently, whether, the Tribunal has jurisdiction to grant judicial review orders to enforce its decisions, including orders on costs. 16.As we have already alluded to earlier, the Tribunal awarded costs to the appellants in different matters. Those costs were taxed, and a certificate of costs issued. The appellants then moved the Tribunal through the motion for an order of mandamus directing the respondents to pay those costs. That application was dismissed after a preliminary objection was raised that the Tribunal did not have jurisdiction to issue such orders. The appellants’ appeal to the first appellate court was equally dismissed giving rise to this second appeal. 17.The appellant’s argument throughout has been and still is, that by virtue of Articles 23(2) and 47(3) of the Constitution as read with section 11(1) of the Fair Administrative Action Act and the rules made thereunder, the Tribunal has jurisdiction to grant judicial review orders and could therefore grant the orders they had sought. The respondents have on the other hand maintained that under sections 8 and 9 of the Law Reform Act as read with Order 53 of the Civil Procedure Rules and Article 165(6) and (7) of the Constitution, jurisdiction to grant judicial review orders is reserved for the High Court of Kenya only, a position both the Tribunal and the first appellate court agreed with. We are therefore called upon to determine whether the first appellate court erred in upholding the position taken by the Tribunal that it does not have jurisdiction to issue orders to enforce its decisions, including enforcement orders on costs. This calls on us to interpret the law and therefore a question of law falling for determination by this Court in a second appeal. 18.Section 133A of the Land Act establishes the Tribunal, provides for its composition and appointment of its members while section 133 C provides for jurisdiction, timelines for filing appeals among others. Under section 13 C (1) the jurisdiction of the Tribunal is to hear and determine appeals from a decision of the Commission in matters relating to the process of compulsory acquisition of land. In addition, subsection (6) provides that matters relating to creation of wayleaves, easements and public right of way are in the first instance to be referred to the Tribunal, while subsection (8) which is material to this appeal, provides that “the Tribunal may, in matters relating to compulsory acquisition of land, hear and determine a complaint before it arising under Articles 23 (2) and 47 (3) of the Constitution, using the framework set out under the Fair Administrative Action Act or any other law.” 19.Under section 133 C (1), the jurisdiction of the Tribunal is to be invoked in cases where there is an appeal from the decision of the commission in matters relating to the process of compulsory acquisition of land, under subsection (6) in cases of creation of wayleaves, easements and public right of way and under subsection (8) in matters relating to compulsory acquisition of land, where there is a complaint arising under Articles 23 (2) and 47 (3) of the Constitution which the tribunal may determine using the framework set out under the Fair Administrative Action Act or any other law. 20.The appellants’ case did not fall under section 133 C (1) because it was not an appeal from a decision of the Commission in matters relating to the process of compulsory acquisition of land. They appear to have invoked section 133C (8) by inviting the Tribunal to determine a complaint they perceived to have arisen under Articles 23 (2) and 47 (3) of the Constitution which they wanted the Tribunal to determine using the framework set out under the Fair Administrative Action Act or any other law, going by the numerous declarations and orders they sought in the motion before the Tribunal. 21.The question we must answer and on which this appeal turns is; does section 133 C (8) of the Land Act give the Tribunal jurisdiction to grant any of the orders the appellants sought? 22.Section 133 C (8) provides in plain and unambiguous language that:“The Tribunal may, in matters relating to compulsory acquisition of land, hear and determine a complaint before it arising under Articles 23 (2) and 47 (3) of the Constitution, using the framework set out under the Fair Administrative Action Act or any other law.” 23.Section 133 C (8) is clear that for the jurisdiction of the Tribunal to be invoked, first; the matter must be one relating to compulsory acquisition of land and second, the complaint must be arising under Articles 23(2) and 47(3) in which case the Tribunal may then determine the complaint using the framework or mechanisms provided for under the Fair administrative Action Act or any other law and grant appropriate relief or orders depending on the circumstances of the case. 24.Article 23(2) required Parliament to enact legislation to give subordinate courts original jurisdiction to hear and determine applications for redress of, a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights in appropriate cases. On the other hand, Article 47(3) required Parliament to enact legislation to give effect to the rights in clause (1), that is, the right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action and to provide for the review of administrative actions by a court, or an independent and impartial tribunal and promote efficient administration. 25.Articles 23(2) and 47(3) did not therefore confer original jurisdiction on the subordinate courts or tribunals to hear matters arising under those Articles but left it to Parliament through the contemplated legislation. In the case of the Tribunal, whose decision is the subject of the appeal before us, the legislation is the Land Act as amended by sections 133A, 133B, 133C 133D and 133F, which establish the Tribunal, provide for its composition, mode of appointment of members, terms of office, jurisdiction and limitation of liability for the members, respectively. 26.There can be no doubt that under section 133 C (8) the jurisdiction of the Tribunal is limited to hearing matters relating to compulsory acquisition of land where a complaint arises under Articles 23 (2) and 47 (3) of the Constitution, over a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights and or alleged failure to accord a party an expeditious, efficient, lawful, reasonable and procedurally fair administrative action. This would also apply in cases arising under section 133C (6) in relation to creation of wayleaves, easements and public right of way which results in alleged violation of rights and fundamental freedoms, or where the process violates the right to fair administrative action guaranteed under article 47(1) of the Constitution. 27.It is under such circumstances that the Tribunal may hear and determine whether there is a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights, or whether the action was expeditious, efficient, lawful, reasonable and procedurally fair and grant appropriate remedy. Except under the above circumstances, we do not see how the Tribunal can hear any other matter or grant judicial review orders under the guise of Articles 23(2) and 47(3) using section 11(1) of the Fair Administrative Action Act, the Rules made thereunder or any other law. 28.We have considered the decision of the first appellate court and weighed it against the law. It is clear to us that the first appellate court addressed itself to the issue that was before the Tribunal and concluded that it was not a matter relating to compulsory acquisition of land from which a complaint would arise under Articles 23 (2) and 47 (3) of the Constitution to fall under the jurisdiction of the Tribunal for determination using the framework set out under the Fair Administrative Action Act or any other law. The first appellate court determined that the motion sought orders of enforcement on costs awarded in different matters already concluded. 29.We agree with the first appellate court and put in plain language, and we must call it what it is, what was before the Tribunal was an application for execution and nothing more. This view is reinforced by the appellants’ reliance on the decision in Telkom Kenya Limited v John Ochanda (supra) for the argument that a court does not disengage from its decisions upon delivering judgment, but retains inherent powers to oversee execution and enforcement of those decisions. 30.The appellants’ litigation this far has been premised on a misapprehension of the reference to Articles 23(2) and 47(3) by section 133 C (8) of the land Act and as a result, they conflated their motion before the Tribunal to appear as one raising constitutional, human rights and fundamental freedoms issues and, therefore, falling under Articles 23(2) and 47(3) of the Constitution. The appellants have been wrong all along. 31.We state without equivocation that section 133 C (8) of the Land Act does not confer on the Tribunal jurisdiction to grant judicial review orders, including mandamus, to enforce its decisions. Its jurisdiction is limited to hearing matters relating to compulsory acquisition of land where a complaint arises on violation of constitutional rights and fundamental freedoms, including the right to fair administrative action(s). 32.We hasten to add that the law is settled that a court must operate within the constitutional or statutory limits; cannot expand its jurisdiction through judicial craft or innovation; may not arrogate to itself jurisdiction through the craft of interpretation or by way of endeavours and jurisdiction is conferred by law not through pleading draftsmanship and legal craftsmanship.(Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR); (re the matter of Interim Independent Electoral Commission, [2011] eKLR); Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR). 33.The appellants’ case is a classic example where they wanted the Tribunal to go against settled law, confer on itself jurisdiction through judicial craft and interpretation and grant orders it had no jurisdiction to grant. The appellants also embarked on a fishing mission by filing a Judicial Review application before the Environment and Land Court (ELC JR No. E045 of 2025), seeking the same orders of Mandamus to enforce the decree on costs, a position counsel for the parties confirmed, while at the same time maintaining active litigation through the appellate process. It is not clear to us what the appellants’ strategy was and what they intended to achieve, if this was not a clear case of abuse of the court process. 34.In the end, we agree with the first appellate court, that enforcement of costs is not one of the matters that would arise under Articles 23(2) and 47(3) and therefore the Tribunal did not have jurisdiction to grant the orders sought in the motion before it. We also agree that the Tribunal cannot issue judicial review orders under Articles 23(2) and 47(3) of the Constitution as read with the Fair Administrative Action Act, except under the circumstances contemplated under section 133 C (8) of the Land Act. 35.This appeal lacks merit and we accordingly dismiss it with costs. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA...................................JUDGE OF APPEALE. C. MWITA...................................JUDGE OF APPEALB. ONGAYA...................................JUDGE OF APPEALI certify that this is a true copy of original.SignedDeputy Registrar