[1985] KECA 1 (KLR)
The Court of Appeal held that by choosing arbitration, the parties limited their right of appeal, and the court cannot entertain challenges to the merits of the arbitrator's decision where no application to set aside the award was made. The only permissible judicial intervention is to ensure that the decree issued...
Source-derived case information.
- Citation
- [1985] KECA 1 (KLR)
- Parties
- Appellant: Muriithi Kirii; Respondent: Ngari Kirii
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 12 of 1985
- Procedural Posture
- Civil Appeal / Appeal From Judgment and Order of the High Court at Nyeri
- Outcome
- Appeal dismissed with costs; record remitted to High Court to amend decree to conform with arbitration award.
- Legal Topics
- Arbitration Awards, Land Inheritance, Registration of Land, Consent to Arbitration, Decree Conformity, Appeal Limited by Arbitration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muriithi Kirii
Appellant
Ngari Kirii
Respondent
Procedural Posture
Civil Appeal / Appeal From Judgment and Order of the High Court at Nyeri
Legal Issues
- 1 Whether the court can entertain an appeal against an arbitrator's award where no application to set aside the award was made.
- 2 Whether the decree issued by the High Court conformed to the terms of the arbitration award.
- 3 Whether the appellant, as registered owner, was under a duty to share the land with the respondent as per the arbitration award.
Ratio Decidendi
The Court of Appeal held that by choosing arbitration, the parties limited their right of appeal, and the court cannot entertain challenges to the merits of the arbitrator's decision where no application to set aside the award was made. The only permissible judicial intervention is to ensure that the decree issued by the court conforms exactly to the terms of the arbitration award. In this case, the High Court's decree did not fully reflect the award, as it purported to divide the land rather than register the brothers as proprietors in common in equal shares. The appeal was dismissed, but the record was remitted to the High Court to amend the decree so that it aligns with the award.
Court Disposition
Appeal dismissed with costs; record remitted to High Court to amend decree to conform with arbitration award.
Orders
- The appeal is dismissed with costs to the respondent.
- The record is remitted to the High Court for the decree to be amended to conform precisely to the terms of the arbitration award.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF APPEAL NYERI
CIVIL DIVISION
CIV APP 12 OF 1985[1]
MURIITHI KIRII………………………………………….…………….APPELLANT
AND
NGARI KIRII …………………………..……………………………RESPONDENT
(Appeal from the judgment and order of the High Court of Kenya at Nyeri (JS Patel, J) dated November 21, 1984 In Misc Civil Case No. 31 of 1979)
JUDGMENT OF PLATT, AG JA
While the settlement of land disputes by arbitration is well-known, what is less wellknown is that by entering into arbitration, the parties have chosen arbitrators to decide their dispute rather than the court, with the consequence that except in limited circumstances there is no appeal. That will be seen very clearly from the terms of order 45 rule 17 of the Civil Procedure Rules. If the process of setting aside the arbitrator’s award is either not available or not resorted to, then the only help the court can give the parties it to make sure that the judgment given by the court is in exact accord with the terms of the award. This is based on the free consent and choice of the parties to prefer their dispute to be settled by arbitration.
In this case, the parties referred their dispute to arbitration. The award was filed. No application to set aside the award was made, although ample time was allowed. Finally judgment was entered in terms of the award. The result was that the appellant, as registered owner of the land, was held to be under a duty to his half brother to share the registered land with him. The registered owner was required to enter into a new relationship with his brother so that both brothers should be registered as common proprietors in equal shares. It was found that the respondent had a right to inherit a part of the land from their common father.
Now the appellant protests against that reasoning. He says that the land was allocated to him alone at the time of demarcation. It was not his father’s land in the sense of giving the respondent an inalienable right to share in the land as an inheritance. The appellant says that the District Officer, who acted as umpire because the arbitrators were unable to come to any majority decision, reached the wrong conclusion. One witness entirely shifted his evidence to suit the respondent. The District Officer was biased against him. There are other cases pending. Extraneous matters were taken into account. In a word, the umpire’s decision was quite wrong.
I must say quite firmly that these are not matters to which this court can now listen. Rule 17(2) provides for no appeal on these matters. That is the price one pays for the privilege of arbitration.
However, I notice one error on the record. The learned judge entered judgment in terms of award. The decree does not say that the brothers shall be registered as proprietors in common in equal shares. It purports to divide the land between the parties. That is not a step permitted by the award, whatever the parties may later do with their common proprietorship.
I would dismiss the appeal with costs, but remit the record to the High Court for the High Court to exercise its consequential powers to see that the decree conforms to the terms of the award, and the judgment passed upon it.
Dated at Nyeri this 24th day of May, 1985.
H G PLATT
AG JUDGE OF APPEAL
IN THE COURT OF APPEAL
AT NYERI
(Coram: Hancox, JA, Platt and Gachuhi, Ag JA)
CIVIL APPEAL NO 12 OF 1985
BETWEEN
MURIITHI KIRII………………………………………….…………….APPELLANT
AND
NGARI KIRII …………………………..……………………………RESPONDENT
(Appeal from the judgment and order of the High Court of Kenya at Nyeri (JS Patel, J) dated November 21, 1984 In Misc Civil Case No. 31 of 1979)
JUDGMENT OF HANCOX, JA
I have had the advantage of reading the judgment of Platt, Ag JA, in draft. I agree that the arbitrator’s decision, as expressed in the casting vote of the District Officer Ndia Division, as umpire, cannot now be challenged by way of appeal in view of order 45 rule 17(2) of the Civil Procedure Rules. The decree must, however, conform precisely with the award dated the January 6, 1984, which, as Platt, Ag JA, has said, it does not do. I therefore agree that the appeal should be dismissed with costs, and with the other orders proposed by Platt, Ag JA.
As Gachuhi, Ag JA also agrees those are the orders of this court.
Dated at Nyeri this 24th day of May, 1985.
A R W HANCOX
JUDGE OF APPEAL
IN THE COURT OF APPEAL
AT NYERI
(Coram: Hancox, JA, Platt and Gachuhi, Ag JA)
CIVIL APPEAL NO 12 OF 1985
BETWEEN
MURIITHI KIRII………………………………………….…………….APPELLANT
AND
NGARI KIRII …………………………..……………………………RESPONDENT
(Appeal from the judgment and order of the High Court of Kenya at Nyeri (JS Patel, J) dated November 21, 1984 In Misc Civil Case No. 31 of 1979)
JUDGMENT OF GACHUHI, A JA
I agree with the judgement of Platt, Ag JA which I have read in draft. I have nothing to add.
Dated at Nyeri this 24th day of May, 1985.
J M GACHUHI
AG JUDGE OF APPEAL
I certify that this is a true copy of the original.
SENIOR DEPUTY REGISTRAR