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The Quick and Sinking Sand as the Foundation of a Suit: The Jurisdiction of Tribunals

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KM 12.02.2021 -The Quick and Sinking Sand as the Foundation of a Suit: The Jurisdiction of Tribunals by Calystus Kisaka

Interim or Partial Judgment

Jurisdiction is everything. Without it, a court downs its tools and cannot take any further step in the matter. These are the words of Nyarangi JA in 1989 in the case of the Owners of Motor Vessel Lilian “S”. A suit filed in the wrong forum is a non-starter and a bunch of nonsense. Oftentimes, in such a case, the opposing counsel will fashion a crushing weapon in the name of a preliminary objection to be determined in limine. The Preliminary objection will most certainly consist of a juggernaut that will inflict grievous and irreparable harm to the suit.

A suit may be dismissed for want of jurisdiction by reason of being filed in court without pecuniary jurisdiction. A suit may also be dismissed on account of jurisdiction ratione material such as where an employment cause is filed in a civil court. Jurisdiction may also be absent because of jurisdiction ratione temporis where the time for bringing the action has since lapsed. Want of jurisdiction will also subsist where the suit is filed in the wrong forum especially where the statute expressly provides for a particular forum. The doctrine of exhaustion of remedies or loosely the doctrine of forum non-conveniens will apply.

Different statutes have provided for different methods of dispute resolution. A procedure provided for under an Act of Parliament should be strictly followed as highlighted by the Court of Appeal in 2008 in the Njenga Karume case. These methods would ordinarily be the first port of call. They include the Tribunals and administrative boards. Tribunals are now coordinated by the Registrar of Tribunals within the Judicial Service Commission. Dr. Kariuki Muigua (in his paper Tribunals within the Justice System in Kenya: Integrating Alternative Dispute Resolution in Conflict Management, 2019) argues that these Tribunals are becoming overwhelmed and, therefore, there is a need to infuse ADR in Tribunals. It is imperative that where the statute establishes these alternative methods, a suit is first filed in the particular Tribunal or Board unless an element of the suit or remedy sought in the suit demands that it be filed elsewhere. The case in point is where a Tribunal or Board is bereft of the power to grant a remedy sought.

We have outlined below the various Tribunals and administrative Boards in existence in Kenya as at
February 2021. While every effort has been made to highlight all the Tribunals and administrative
Boards, let us know if there are any we have left out.

Do you realize that the Tribunals are a tad too many and confounding? The Kenya Law Reform Commission has suggested reform (Report of the Committee on the Review of the Rationale for the Establishment of Tribunals in Kenya, 2015) by way of standardization of the Tribunals in line with what is happening in UK and Australia.

Do you agree? Or is it easier to have them in the respective statutes?

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