[2004] KEHC 710 (KLR)
The court found that there was no evidence of misconduct by the arbitrator. All parties were given an opportunity to be heard, and each party had the chance to present evidence and cross-examine witnesses. The applicant did not request the production of books of account or receipts during the arbitration, nor did he...
Source-derived case information.
- Citation
- [2004] KEHC 710 (KLR)
- Parties
- Plaintiff: Abuga Bogonko; Defendant: Nyamongo Orina; Defendant: Nyamongo Bogonko; Defendant: Nyaoga Orina; Defendant: Nyacheo Orina; Defendant: Mary Atura
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 347 of 1997
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Arbitration Award
- Outcome
- application dismissed with costs
- Judges
- K Bauni
- Legal Topics
- Arbitration Award Challenge, Misconduct of Arbitrator, Setting Aside Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abuga Bogonko
Plaintiff
Nyamongo Orina
Defendant
Nyamongo Bogonko
Defendant
Nyaoga Orina
Defendant
Nyacheo Orina
Defendant
Mary Atura
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Arbitration Award
Legal Issues
- 1 Whether the arbitrator misconducted himself in the conduct of the arbitration.
- 2 Whether the arbitration award should be set aside on grounds of alleged misconduct and concealment of evidence.
Ratio Decidendi
The court found that there was no evidence of misconduct by the arbitrator. All parties were given an opportunity to be heard, and each party had the chance to present evidence and cross-examine witnesses. The applicant did not request the production of books of account or receipts during the arbitration, nor did he raise these issues in his evidence. The arbitrator was not obligated to seek out evidence on behalf of the parties. There was no indication that the respondents deliberately concealed evidence. Consequently, the application to set aside the arbitration award lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the arbitration award is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL SUIT NO.347 OF 1997
ABUGA BOGONKO ………………………………………….. PLAINTIFF
VERSUS
NYAMONGO ORINA
NYAMONGO BOGONKO
NYAOGA ORINA ……………………………….. DEFENDANTS
NYACHEO ORINA
MARY ATURA
RULING:
The applicant/plaintiff seeks court to set aside the arbitrator’s award filed in court and proceed to hear the suit.
The plaintiff filed this suit in 1997 seeking to have the partnership between him and the defendants dissolved and its assets sold.
On 14th May 2002 the matter was by consent referred to the arbitration of Assistant Chief NICHOLAS OKUMU ARAKA with help of six elders. The arbitrator eventually filed the award and it was read to the parties in presence of their counsels on 24th September 2002. The plaintiff being dissatisfied with the award filed this application on 23rd October 2002.
The main ground of the application is that the arbitrator misconducted himself. It was submitted that he failed to demand books of accounts from the respondent and that he failed to note the value of the land was not included.
Further it was said the respondent fraudulently concealed or misled the arbitrator. They failed to avail the books of account, failed to produce receipts.
The application was opposed. It was submitted that there was no misconduct on part of the arbitrator.
I have considered the arbitration award and the submission. There was no proof the arbitrator misconducted himself in any way. Every party was given an opportunity to be heard. Each party had appointed three elders. Nobody was stopped to give evidence. The applicant gave evidence. He did not talk of any books of account in his evidence. Infact he said he was disgusted when the house was sold and that is what he sought to stop through the lawyer. The respondents gave evidence and they were cross-examined. The applicant did not demand that they produce any books or receipts. I agree with counsel for respondents that it was not for the arbitrator to go fishing for evidence. It was for the parties to produce the same.
There was nothing to show that respondent deliberately concealed any evidence before the arbitrator.
All in all I find the application has no merit and the same is dismissed with costs.
KABURU BAUNI
JUDGE
29/7/04
Dated 29th July 2004.
Mr. Otiso holding brief for Mr. Mainye for Respondent.
N/A for Applicant.
KABURU BAUNI JUDGE