[1997] KECA 53 (KLR)
The Court of Appeal found that the panel of arbitrators had misconducted itself by deciding the dispute on a factual basis (sale of land for school fees) that was not supported by any evidence adduced before them. The arbitrators introduced and relied upon an issue that was never canvassed by the parties, which...
Source-derived case information.
- Citation
- [1997] KECA 53 (KLR)
- Parties
- Appellant: Francis Maina Mathii; Respondent: Peter Nguru Bedan
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 292 of 1996
- Procedural Posture
- Civil Appeal / Appeal From High Court Judgment Refusing Review of Arbitral Award
- Outcome
- appeal allowed
- Legal Topics
- Arbitral Awards, Misconduct of Arbitrators, Review of Award, Sale of Land, Consent of Land Control Board, Trusts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Maina Mathii
Appellant
Peter Nguru Bedan
Respondent
Procedural Posture
Civil Appeal / Appeal From High Court Judgment Refusing Review of Arbitral Award
Legal Issues
- 1 Whether the arbitrators misconducted themselves by deciding the dispute on a factual basis not supported by evidence.
- 2 Whether the arbitral award should be set aside due to misconduct of the arbitrators.
- 3 Whether the issue of trust was properly addressed by the arbitrators.
Ratio Decidendi
The Court of Appeal found that the panel of arbitrators had misconducted itself by deciding the dispute on a factual basis (sale of land for school fees) that was not supported by any evidence adduced before them. The arbitrators introduced and relied upon an issue that was never canvassed by the parties, which constituted misconduct. Furthermore, the consent of the Land Control Board for the sale of land was obtained five years after the purported transaction, undermining the validity of the sale. The arbitrators also failed to address all the issues arising from the pleadings, particularly the issue of trust. In light of these irregularities, the Court allowed the appeal, set aside the...
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The suit in the High Court is to be heard de novo.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NYERI
Civil Appeal 292 of 1996
FRANCIS MAINA MATHII ……………………........................................………………….APPELLANT
AND
PETER NGURU BEDAN ………………….................................………………………RESPONDENT
(Appeal from the judgment and order of the High Court of Kenya at Nyeri (Tunoi, J. ) dated 6th March, 1992
IN
H. C. C.C. NO. 36 OF 1988)
*********************
JUDGMENT OF THE COURT
This appeal is against the decision of the superior court (Tunoi j. as he then was) by which the superior court declined to review the non-setting aside of an award made and given by the arbitrators which was read to the parties on 18th October, 1990. The appellant and supplied, earlier, to have the award set aside on basis, inter alia, that the award was not base on the evidence, just and fair, adduced before the panel of arbitration.
The appellant then applied to have the learned judge’s ruling reviewed. We need not go at Length into the matters then raised by the appellant.
The crucial aspect of this appeal is that the panel of arbitrators proceeded to give and make the award in favour of the respondent on the alleged factual basis that the appellant’s father had sold the land in question to the respondent as the appellant’s father needed money for medical treatment. The fact of the matter however remains that the panel of the arbitrators, without there being any evidence to that effect, found that the appellants’ father purported to sell the land to obtain school fees for the children of the appellant’s father.
When the issue of the alleged need for payment of school fees was never canvassed before the panel of arbitrators, it was quite wrong for the arbitrators to decide the issue of such basis. The crux of the appeal therefore is and must be that the arbitrators misconducted themselves when they decided that the appellant’s father must have sold the land for the sake of school fees. This factors alone, to our minds, is sufficient to say that the arbitrators’ panel misconducted itself.
Even on the issue of the consent of the relevant board the issue of sale of land fails as the consent was obtained some five years later.
We have expressed our concern in another appeal only few days ago in the manner in which some panel of arbitrators conduct such proceedings.
It is also clear that the panel of arbitrators did not answer the issues that arose from the pleadings. The issue of trust was before the arbitrators but not that of adverse possession.
In all the circumstances of this appeal we are of the view that the appeal should be allowed and that the suit in superior court be heard by that court de novo. We so order. As the appellant acts in person we would allow his costs for preparing the record of appeal and his out of pockets which we assess at Shs. 5, 000/=. The respondent will pay this sum of shs. 5,000/= to the appellant.
Dated and delivered at Nyeri this 16th day of May, 1997.
J. E. GICHERU
……………………..
JUDGE OF APPEAL
A. B. SHAH
…………………
JUDGE OF APPEAL
S. E. O. BOSIRE
…………………..
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTAR