[2010] KEHC 1328 (KLR)
The court found that the order of Mutungi J. dated 11th October, 2006 gave the arbitration panel a limited mandate: to identify the next of kin of the deceased appellant and to establish the fact of death. There was no direction to re-open or re-hear the substantive dispute between the parties, as the arbitration...
Source-derived case information.
- Citation
- [2010] KEHC 1328 (KLR)
- Parties
- Appellant: Hannah Wanjiru Kuria; Respondent: Wangui Njoroge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 182 of 1994
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Arbitration Award
- Outcome
- application to set aside the arbitration award allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Arbitration Award Setting Aside, Reference to Arbitration, Substitution of Parties, Misconduct of Arbitrators
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hannah Wanjiru Kuria
Appellant
Wangui Njoroge
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Arbitration Award
Legal Issues
- 1 Whether the arbitration panel acted outside the terms of reference set by the court order of 11th October, 2006.
- 2 Whether the award filed on 19th March, 2007 should be set aside for misconduct or failure to adhere to court directions.
Ratio Decidendi
The court found that the order of Mutungi J. dated 11th October, 2006 gave the arbitration panel a limited mandate: to identify the next of kin of the deceased appellant and to establish the fact of death. There was no direction to re-open or re-hear the substantive dispute between the parties, as the arbitration committee had already determined the matter and was functus officio. The panel's decision to go beyond this mandate and issue a new award constituted misconduct and was contrary to the court's instructions. As a result, the award filed on 19th March, 2007 was set aside for being ultra vires the court's order.
Court Disposition
application to set aside the arbitration award allowed
Orders
- The award filed on 19th March, 2007 is set aside.
- The application dated 7th and filed on 8th May, 2007 is allowed with costs to the respondent/applicant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Appeal 182 of 1994
HANNAH WANJIRU KURIA……………………………..APPELLANT
VERSUS
WANGUI NJOROGE…………………………………………RESPONDENT
RULING
The dispute in this matter was referred to a panel of arbitration chaired by the District Officer, Githunguri, in Kiambu.An award was then made and filed in court.Before the award was read, one of the parties is said to have died.When the parties appeared before Mutungi J. for mention on 11th October, 2006 the learned judge made the following orders;
1. That the matter be and is hereby referred back to arbitration at District Officer’s level where the elders can precisely identify if there are any next of kin of the appellant other than the respondent, who can be substituted in the deceased appellant’s place.The same arbitrator/committee to also establish the death of the appellant.
2. That after conclusion of (1) above, the matter be brought back to this court for the final award as recommended by the arbitrators/committee at District Officer’s level.
3. That the above process be completed within three (3) months from the date hereof.
That order prompted another arbitration which was chaired by the District Officer, Githunguri Division.Another award was filed on 19th March, 2007. It is this award that has led to the present application.
By an application by way of Notice of Motion under Order XLV rule 15 or the Civil Procedure Rules the respondent has moved the court to set aside the award filed in court on 19th March, 2007. The ground upon which the order is sought is that the panel was guilty of misconduct having refused and or failed to adhere to the terms of reference given by this court on 11th October, 2006.
I have gone through the record before me.I am of the view that the ultimate decision in this application depends on the interpretation of the order of Mutungi J. dated 11th October, 2006. Both learned counsel have filed their submissions.As at the time Mutungi J.made the order referred to above, there was already on record an arbitration award pending reading.There was no application before the learned judge challenging the said award or seeking to set it aside.It is logical to conclude therefore, the learned judge by his order, and I get support from the language used, gave specific instruction for the elders to precisely identify if there is or there are any next of kin of the appellant that can be substituted in place of the appellant. The arbitrator or committee was also mandated to establish the alleged death of the appellant.
I have seen no direction to the committee to re-open and hear the dispute between the parties.Had the learned judge intended that to be the impact of the order, he would have said so clearly. In any case, the arbitration committee had already determined the dispute and was therefore factus officio.I see no other interpretation from the said order.
That being the case, I am persuaded that that award filed on 19th March, 2007 is not only misplaced, but contrary to the direction given by the learned judge.It follows therefore that the same must be set aside.
I note that there is another application seeking to enter judgment in terms of the earlier award, but that is not the basis of this ruling and I leave it to counsel to address the same.For now I allow the application dated 7th and filed on 8th May, 2007 with costs to the respondent/applicant.
Orders accordingly.
Dated, signed and delivered atNairobithis 22nd day of September, 2010
A.MBOGHOLI MSAGHA
JUDGE