[1988] KECA 9 (KLR)
The Court of Appeal found no evidence of misconduct by the panel of elders in the arbitration proceedings. The signatures of the elders on the handwritten page were deemed to refer to the award attached to the proceedings, and there was no basis to conclude that the elders had not seen or agreed to the award. The...
Source-derived case information.
- Citation
- [1988] KECA 9 (KLR)
- Parties
- Appellant: Leonard Wachira Karani; Respondent: Francis Mbui Munyaka
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 45 of 1986
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs
- Legal Topics
- Arbitration Awards, Setting Aside Award, Misconduct of Arbitrators
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Wachira Karani
Appellant
Francis Mbui Munyaka
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the panel of elders was guilty of misconduct in the arbitration proceedings.
- 2 Whether the award of the panel of elders should be set aside under Order 45 Rule 15(a) of the Civil Procedure Rules.
Ratio Decidendi
The Court of Appeal found no evidence of misconduct by the panel of elders in the arbitration proceedings. The signatures of the elders on the handwritten page were deemed to refer to the award attached to the proceedings, and there was no basis to conclude that the elders had not seen or agreed to the award. The court held that the trial judge was correct in dismissing the application to set aside the award and entering judgment in terms of the award. The appeal was therefore dismissed with costs.
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT NYERI
(Coram: Platt, Gachuhi & Masime JJA)
CIVIL APPEAL NO 45 OF 1986
LEONARD WACHIRA KARANI...........................APPELLANT
VERSUS
FRANCIS MBUI MUNYAKA..............................RESPONDENT
JUDGMENT.
(Appeal from the High Court at Nyeri, Patel J)
Platt, Gachuhi, Masime JJA delivered the following Judgment.
This appeal arises from the ruling of the High Court at Nyeri, whereby it dismissed the Appellant’s application to set aside the award of a panel of elders, which arbitrated the dispute between the parties. That application alleged that the panel of elders was guilty of misconduct, and so the award ought to be set aside under Rule 15(a) of Order 45 of the Civil Procedure Rules. In his ruling the learned trial judge found no misconduct, and so he dismissed the application and proceeded to enter judgment in terms of the award.
In this appeal the same allegation of misconduct has been argued. Learned Counsel for the Appellant has referred us to the record of the arbitration proceedings and submitted that since the signatures appear on a handwritten page after the rest of the award which is typewritten the elders signed that page without seeing the award. The signature page of the award clearly refers to the “award attached to the proceedings to the proceedings of the enclosed case” being agreed upon by the elders who then sign below. In view of this, we do not accept Counsel’s submission. The other matter of the acreage of the Respondent’s portion is covered by the view taken of the evidence.
In the result we find no merit in this appeal and we order it to be dismissed with costs. But we note that the Respondent is satisfied with his award of 3 acres and his agreement that his brothers’s family should have 5 acres.
As we pointed out this morning in another case where the High Court refuses to set aside an award under Order 45 Rule 15, the combined effect of Order 42 Rules 1 and 2 and Order 45 Rule 17(1)(c) of the Civil Procedure Rules requires the intending appellant to seek leave of the High Court before the appeal is brought. Advocates should be aware of this Rule.
Dated and delivered at Nyeri this 20th day of May , 1988
H.G PLATT
......................
JUDGE OF APPEAL
J.M GACHUHI
....................
JUDGE OF APPEAL
J.R.O MASIME
..........................
JUDGE OF APPEAL
Cases
No cases referred to.
Statutes
Civil Procedure Rules (cap 21 Sub Leg) order 45 rules 15(a), 17(1)(c); order 42 rules 1, 2 May 20, 1988,