[2007] KEHC 1534 (KLR)
The court found that the appeal was filed well outside the prescribed period for lodging appeals from the date of the arbitration award's adoption by the lower court. There was no evidence that the appellant had obtained leave of court to file the appeal out of time. The absence of such leave rendered the appeal...
Source-derived case information.
- Citation
- [2007] KEHC 1534 (KLR)
- Parties
- Appellant: Peter Njuguna Muchira; Respondent: Mugo Muchira Mukangu; Respondent: Francis Njigoya Muchira; Respondent: Gladys Wachuka Muchira
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 16 of 1994
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed as incompetent
- Legal Topics
- Appeal Out of Time, Arbitration Award Enforcement, Land Sale Agreement, Limitation Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Njuguna Muchira
Appellant
Mugo Muchira Mukangu
Respondent
Francis Njigoya Muchira
Respondent
Gladys Wachuka Muchira
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal was filed within the prescribed time period.
- 2 Whether there was any justification or leave for filing the appeal out of time.
- 3 Whether the lower court's adoption of the arbitration award was proper.
Ratio Decidendi
The court found that the appeal was filed well outside the prescribed period for lodging appeals from the date of the arbitration award's adoption by the lower court. There was no evidence that the appellant had obtained leave of court to file the appeal out of time. The absence of such leave rendered the appeal incompetent. The court further noted that the lower court had properly adopted the arbitration award, and there was no misconduct by the arbitrators. On the basis of the appeal being filed out of time and without leave, the court dismissed the appeal with costs to the respondents.
Court Disposition
appeal dismissed as incompetent
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NYERI
CIVIL APPEAL 16 OF 1994
PETER NJUGUNA MUCHIRA…………..…………….....………….APPELLANT
Versus
MUGO MUCHIRA MUKANGU)...…………..………....…..…..1ST RESPONDENT
FRANCIS NJIGOYA MUCHIRA………………..….………….2ND RESPONDENT
GLADYS WACHUKA MUCHIRA…………..…...…………….3RD RESPONDENT
(Being appeal from the Judgment of the senior Resident Magistrate Nyeri, J. S. Mushelle) dated 9th July 1992)
JUDGMENT
The Respondent in the lower court filed a claim against the appellant for Ksh.25,400. The Respondent’s case was that the appellant agreed to buy from the deceased MUCHIRA MUKANGU two acres of property No. KABARE/GAAGI/142 for the price of Ksh.30,400. It is alleged the appellant paid 15,000 of that purchase price and there remained a balance not paid of Ksh.15,400/=. The deceased subdivided the land and transferred two acres to the appellant. There were crops on that land which the deceased valued to Ksh.10,000. The total claim against the appellant was therefore Ksh.25,400. At the lower court on 14th July 1986 the parties consented to their matter being referred to arbitration. The award was to be filed within 90 days. When the matter came before court on 25th Sep. 1996 the court directed the District Officer to file the award by 23rd October 1999. On that date the court extended the time for filing the award to 11th Dec. 1999. The award was finally read on 15th May 1980.
The appellant filed an application seeking to set aside that award. The court in delivering its ruling to that application found that the arbitrators had not misconducted themselves and proceeded to enter judgment as per the award. The court on its own motion gave any party aggrieved 28 days within which to file an appeal. According to the computation of time from the date of reading the award such an appeal should have been filed by 6th Aug. 1992. The Memorandum of Appeal hereof shows that this appeal was filed on 1st March 1994. I was unable to find any evidence of the extension of the period in which the appeal could be filed. There is therefore no justification for filing the appeal on 1st March 1994. Accordingly the appellants appeal was filed out of time and without leave. For that reason the same is incompetent and on that basis alone the appeal is dismissed with costs to the Respondent.
MARY KASANGO
JUDGE
Dated and delivered at Nyeri this 2nd day of November 2007.
By: M. S. A. MAKHANDIA
JUDGE