[2005] KEHC 245 (KLR)
The court found that both parties had, by consent, repeatedly extended the time for filing the arbitration award, and when it became clear that no award would be forthcoming, they agreed to have the dispute heard by the court. The hearing was conducted with the full participation of both parties and their advocates,...
Source-derived case information.
- Citation
- [2005] KEHC 245 (KLR)
- Parties
- Plaintiff: Mr. Macharia Thuku; Defendant: Kiriro Githaiga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 4821 of 1988
- Procedural Posture
- Civil Case / Ruling on Application for Review and Setting Aside of Judgment
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Judgment, Arbitration Reference, Extension of Time, Consent Orders, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mr. Macharia Thuku
Plaintiff
Kiriro Githaiga
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review and Setting Aside of Judgment
Legal Issues
- 1 Whether the orders made on 8th December 1998 and the subsequent judgment should be reviewed, varied, or set aside.
- 2 Whether the applicant is entitled to an extension of time for filing or reading the arbitrator's award.
- 3 Whether the hearing and judgment delivered by the court were regular and valid after the failure of arbitration.
Ratio Decidendi
The court found that both parties had, by consent, repeatedly extended the time for filing the arbitration award, and when it became clear that no award would be forthcoming, they agreed to have the dispute heard by the court. The hearing was conducted with the full participation of both parties and their advocates, and judgment was delivered after a regular trial process. The applicant's request to review, vary, or set aside the orders and judgment was therefore without merit, as the judgment was properly entered following due process. The court further noted that, given the long delay and the sensitive nature of land disputes, it was appropriate for the matter to be resolved by the...
Court Disposition
application dismissed with costs
Orders
- The defendant's application for review, variation, or setting aside of the orders and judgment is dismissed with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 4821 of 1988
MR. MACHARIA THUKU…………………………….….……………..PLAINTIFF
VERSUS
KIRIRO GITHAIGA…………………………………………….……DEFENDANT
RULING
The applicant by way of this Notice of Motion dated 5th December, 2000 and brought under Section 3A and 80, and Order XL Rules 1 and 2 of the Civil procedure Rules seeks orders for review vary and/or set aside the orders made on 8th December 1998, fixing the case for hearing together with all the subsequent orders and judgment dated 29th March 2000. The applicant also seeks orders for extension of time for filing and/or reading the arbitrators award filed herein to such a reasonable time and on such terms as it may find fair and just to grant.
The suit was filed by way of a plaint (undated) in 1988. About 8 years later on 29th May 1995 the dispute was by consent referred to arbitration.
The consent order was in the following terms:-
“By consent the matter in dispute between the parties in this suit are hereby referred to arbitration under Order XL R of the Civil Procedure Rules, by the District Officer of Mbogo I and II Division Nakuru District. The District Officer to file the award within 90 days.
Each party to appoint (3) three elders to sit with the District Officer. The parties be at liberty to call witnesses. The matter was to be mentioned on 18th September 1995 at the expiry of the 90 days.”
By 18th September 1995, the award had not been filed. Time to file the award was extended by consent to 2nd November 1995, but no award was filed. Time to file the award was extended by consent to 5th December 1995 and to 19th January 1996. The last mention which was by consent of both parties was on 22nd February 1996 and when it was apparent that no award was forthcoming, both parties agreed to appear before the duty Judge on 8th December 1998 for mention for directions.
It was by consent agreed that the suit be heard in court and by consent hearing was fixed for 23rd and 24th of March 1999.
On 23rd March 1999 when the suit came up for hearing there was no mention that the award had been filed. The applicant was represented by a very senior counsel Mr. Githuka. Both parties attended the hearing to conclusion. The plaintiff gave evidence and was cross examined at length. At the close of the plaintiff’s case the defendant took the witness box testified at length and was cross examined by Miss Gwaro.
At the close of the hearing both parties submitted. Judgment was written and delivered on 26th January 2000. When a matter is referred to arbitration by consent under Order XLV and award is to be filed within a given time, the parties may by consent extend the time for the filing of the award if on that given date the award is found not to be ready.
Both parties consented to the extension of time between 18th September 1995 and 22nd February 1996. But on 22nd February 1996 when they realized that no award had been filed they consented to have the dispute heard by the court and the hearing took place with full participation of both parties. The judgment was regularly entered after full hearing and the applicant cannot be heard to say that he now wants the same to be reviewed and set aside.
Keeping in view of the long delay after the institution of the suit and the fact that it involves land which is sensitive to all Kenyans it was in my opinion appropriate and more satisfactory in the whole to have the suit tried in a competent court of law in normal cause rather than by lay arbitrators who are not bound by the law of evidence or by the law of procedure.
For the reasons stated above the defendant’s application is dismissed with costs.
Orders accordingly
Dated and delivered at Nairobi this 24th day of February, 2005.
J.L.A. OSIEMO
JUDGE