[1998] KECA 271 (KLR)
The Court of Appeal held that the learned judge of the High Court acted without jurisdiction in referring the matter to arbitration without the parties' agreement, as required by section 59 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. Consequently, the order referring the matter to...
Source-derived case information.
- Citation
- [1998] KECA 271 (KLR)
- Parties
- Appellant: Mutua Vuvi; Appellant: Mutune Musyoki; Appellant: Kalee Mutua; Respondent: Titus Ngui Mutisya
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 129 of 1997
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Arbitration Reference, Review of Award, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutua Vuvi
Appellant
Mutune Musyoki
Appellant
Kalee Mutua
Appellant
Titus Ngui Mutisya
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the High Court judge erred in referring the matter to arbitration without the parties' agreement as required by law.
- 2 Whether the subsequent confirmation of the arbitral award and refusal to review it were valid.
Ratio Decidendi
The Court of Appeal held that the learned judge of the High Court acted without jurisdiction in referring the matter to arbitration without the parties' agreement, as required by section 59 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. Consequently, the order referring the matter to arbitration, the confirmation of the arbitral award, and the refusal to review the confirmation were all nullities. The appellate court allowed the appeal, set aside the orders of the High Court, and restored the position as previously ordered by Platt J.
Court Disposition
appeal allowed
Orders
- The appeal is allowed with costs.
- The orders of the High Court are set aside as nullities.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: AKIWUMI, SHAH & LAKHA, JJ.A.)
CIVIL APPEAL NO. 129 OF 1997
BETWEEN
1. MUTUA VUVI
2. MUTUNE MUSYOKI
3. KALEE MUTUA ......................................... APPELLANTS
AND
TITUS NGUI MUTISYA .................................... RESPONDENT
(Appeal from the Judgment of the High Court of Kenya at Machakos (Justice Torgbor) dated the 9th day of November, 1990 in H.C.C.C. NO. 7 OF 1987) **********
JUDGMENT OF THE COURT
The appeal is against the decision of the learned Judge (Torgbor J) of the superior court where he refused to review his confirmation of the award made by the arbitrators on a matter which had been ordered by the learned judge to be arbitrated upon. In doing so, the learned judge acted on his own without the parties having first agreed to the matter being referred to arbitration which are the mandatory rules provided for this purpose by section 59 of the Civil Procedure Act and O 45 r 1 of the Civil Procedure Rules. In the result, the order of the learned judge referring the matter before him to arbitration was a nullity and any acts performed on the basis of this order including those of the learned judge, are a nullity. The decision of the learned judge appeal against is likewise a nullity. We must therefore allow this appeal with costs and order that the position as ordered by Platt J as he then was, shall be maintained.
Dated and delivered at Nairobi this 29th day of May, 1998.
A. M. AKIWUMI
JUDGE OF APPEAL
A. B. SHAH
JUDGE OF APPEAL
A. A. LAKHA
JUDGE OF APPEALI certify that this is a true copy of the original. DEPUTY REGISTRAR.