[2023] KEHC 24684 (KLR)

Punjani v Punjani (Miscellaneous Application 20 of 2017) [2023] KEHC 24684 (KLR) (27 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24684 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Application 20 of 2017

G Mutai, J

October 27, 2023

Between

Taurat Punjani

Applicant

and

Ali Badrudin Punjani

Respondent

Ruling

Introduction 1. This matter has been the subject of acrimonious contestation in this Court since 2017. The main issue is the enforceability of the award made by His Highness Prince Khan Shia Ismail National Conciliation and Arbitration Board (NCAB) and His Highness Prince Aga Khan Shia Imami Ismaili International Conciliation and Arbitration Board (ICAB), in particular, the award made by the latter on 11th December 2013 vide which it found that the Respondent/Applicant was still married to the Applicant/Respondent, and would remain so until he obtained a valid divorce and that his marriage to one Amairah Ali was in breach of the Shia Imami Ismailia Constitution and ordered him to make certain payments.

2. The arbitral award was thereafter adopted by this Court on 21st June 2017, upon the application by the Applicant/Respondent dated 12th May 2017. The Respondent/Applicant, despite being served, did not take part in the said proceedings.

3. Being aggrieved by the said decision, the Respondent/Applicant moved this Court, vide a Notice of Motion dated 21st July 2017, seeking enlargement of time to file an application to set aside the said arbitral award, review of the order adopting the arbitral award and entry of judgment and that the court does refuse to recognise the arbitral award.

4. This Court (per M. Thande, J), in a ruling delivered on 4th May 2018, refused to extend the time for the Respondent/Applicant to challenge the award. The Court, however, reviewed and vacated the adoption of the award on the grounds that the original copy of the award or duly certified copy thereof, had not been annexed to the application dated 12th May 2017. As noted by Onyiego, J in his ruling of 9th June 2021, the effect of the former decision of the court was that the parties were restored to the position they were in prior to 21st June 2017.

5. The Applicant/Respondent subsequently sought and was granted, leave to file a supplementary affidavit to introduce the original marriage contract in support of the application dated 12th May 2017. The Applicant/Respondent was ordered to serve the Respondent/Applicant with the supplementary affidavit. Despite being served, the Respondent/Applicant did not file any response nor appear for hearing, and hence the application proceeded exparte.

6. The award was adopted, for the second time, by this Court (per Onyiego J) on 9th June 2021. The said learned Judge stated in paragraph 12 of his ruling that: -“there being no objection to the adoption of the award made on 12th December 2015 and the applicant having attached certified copies of the award and the marriage contract (agreement), I have no option but to allow the Chamber Summons dated 12th May 2017 in terms of prayer one and therefore adopt the award dated 11th December 2015 as a judgment of the Court”.

7. When the Applicant/Respondent attempted to execute the judgment, the Respondent/Applicant filed a Notice of Motion dated 13th July 2022 vide which he sought inter alia the following orders:-“(5)this honourable Court dismiss the arbitration award dated 11th May 2013 as the same contradicts the provisions of the Arbitration Act, 1995 (as amended in 2009) in that the same breaches public policy on the ground that the same seeks to grant an award in perpetuity thereby breaching the provisions of public policy; and(6)That the honourable Court dismiss the arbitration award dated 11th May 2013 as the same does not conform to the provisions of sections 35, 36 and 37 of the Arbitration Act 1995 (as amended in 2009).”

8. After hearing the parties I held, on 12th May 2023 that: -“I find and hold that this Court is functus officio and cannot entertain the preliminary objection and the application dated 14th July 2022 filed by Ali Punjani”

9. The Respondent/Applicant didn’t appeal against my said decision, nor did he seek to have it set aside or reviewed.

The Application 10. That should have been the end of the matter. But alas! It was not to be. Like a zombie in a horror movie that refuses to die, the application dated 13th July 2022 was resurrected in the guise of a stay of execution and review application dated 1st August 2023. In the new application, the Respondent/Applicant sought the following orders:-1. Spent;2. Spent;3. That the honourable Court herein set aside and dismiss the adoption of the alleged arbitration award adopted as a judgment of the Court dated 9th June 2021;4. That a declaration be issued declaring His Highness Prince Aga Khan Shia Imami National Conciliation and Arbitration Board, based on its admission, is not allowed to conduct arbitration matters and that proceedings before the said Board should not be tabled before the Court for adoption by the Court as a judgment of the Court;5. That the suit herein be dismissed; and6. That the Applicant herein is granted costs incurred since the filing of the suit.

11. It would appear to me that the Respondent/Applicant seeks to set aside and dismiss the adoption of the arbitral award of this Court (which can only be made on the basis that the matter has been concluded) and, at the same time, to have the suit dismissed (which can only happen if the suit is still pending). But what do I know?

12. The application is supported by the annexed affidavits of Kennedy Muriuki Kiranga and Steve Nyamu. The two persons are advocates of the High Court, the latter being the advocate on record for the Respondent/Applicant. They are, from what I could glean from their affidavits, drinking pals and patrons of a pub called Mwendas, where Mr. Kiranga said, “We normally meet after work”. A discussion at the said pub ignited a light bulb moment that led Mr. Kiranga into web-based research whose fruits were an email dated 30th March 2023 with time stamp 1147 am where NCAB wrote in part as follows: -“His Highness Prince Aga Khan Shia Imami Ismaili for Kenya is a community-based dispute resolution body primarily providing mediation services. NCAB Kenya is currently not handling any arbitration nor is it issuing any arbitration awards. It is a voluntary process, requiring both parties to submit for mediation to proceed”

13. Mr. Nyamu had also undertaken research of his own. In an email dated 29th September 2022, NCAB Kenya wrote to him as follows:-“1. What is the role of the board? His Highness Prince Aga Khan Shia Imami Ismail National Conciliation and Arbitration Board for Kenya is a community-based dispute resolution body primarily providing mediation services.2. Does the board conduct arbitration? NCAB Kenya is currently not handling any arbitrations, nor is it issuing any arbitration awards”

14. On the basis of the said emails, Mr. Nyamu stated in paragraph 19 of his affidavit that: -“that it is my belief that the Applicant/Respondent herein has known and willingly deceived the Court that the said Board has the capacity to conduct arbitration matters”.

The Response by the Applicant/Respondent 15. The said application is opposed. The Applicant/Respondent filed a Replying Affidavit, which in the main, argued that the fact the NCAB does not currently undertake arbitration does not mean that it didn’t do so in the past. She further argued that this Court is functus officio, having made final determinative decisions in the past. Ms. Taural Punjani submitted that the application was an appeal disguised as an application for review.

16. In her grounds of opposition, the Applicant/Respondent urged that the application is fatally defective as the Respondent/Applicant had not annexed an extracted copy of the order sought to be reviewed. She argued that the production of new evidence at this point showed a lack of diligence on the part of the Respondent/Applicant. It was urged that sufficient grounds for review had not been adduced.

17. The Applicant/Respondent also filed an Amended Application for Execution. The same was not opposed.

Submissions of the Respondent/Applicant 18. Mr. Nyamu submitted that prior proceedings of this Court were irregular as the Court was misled into adopting an award made by a body that does not conduct arbitration but rather mediates disputes between members. He argued that the proceedings were founded on a lie. He thus asked me to review the decision my brother Judge made vide which he adopted the award. Relying on the Supreme Court of Kenya decision in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others [2017]eKLR Mr. Nyamu urged that a Court can review its decision if new and credible evidence becomes available. He thus prayed that I vacate the impugned decision and award the Respondent/Applicant costs.

Submissions of the Applicant/Respondent 19. Ms. Punjani submitted that Mr. Nyamu hadn’t disputed that the award is legitimate. She argued that in compliance with the award, the Respondent/Applicant made some payments. She stated that the Respondent/Applicant had corresponded with NCAB in the past and that he didn’t challenge their decision at the time it was made but was indolent. In her view, there is no new evidence that could justify a review of the adoption of the award. She submitted that the application was filed with a view to defeating the execution of the award. She urged that her application dated 23rd August 2023 be allowed as it wasn’t opposed.

Analysis and Determination 20. In my view, the issues pending determination are:-a.Whether a case has been made warranting review of the orders that this Court made on 9th June 2021; andb.Whether or not the Court was misled that NCAB conducts arbitration.

Has a case been made for review of the judgment of this Court? 21. Order 45, Rule 1 of the Civil Procedure Rules provides as follows:-“1. (1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.” (emphasis added).

22. The Respondent/Applicant avers that he has now discovered new and important evidence which shows that NCAB does not conduct arbitration. Would such discovery, if at all it was made, justify review? In my view, the test I should apply is that set out by Mativo J (as he then was) in Republic v Advocates Disciplinary Tribunal Ex-parte Apollo Mboya [2019]eKLR, wherein he stated that:-“The principles which can be culled out from the above noted authorities are:-i.A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.ii.The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.iii.An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80. iv.An erroneous order/decision cannot be corrected in the guise of exercise of power of review.v.A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.vi.While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.vii.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.viii.A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.ix.Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1. x.The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1”

23. As a member of the Shia Imami Ismaili Community, the Respondent/Applicant was in a position to know whether or not NCAB or ICAB undertakes arbitration and should have produced the said evidence at the first opportunity. Even if he wasn’t aware, a very unlikely thing, given the contents of his marriage contract with the Applicant/Respondent, that clearly and directly mentioned arbitration, he cannot be said to have exercised due diligence.

24. Further, the Respondent/Applicant took too long to bring this application. Information sought from NCAB was provided in September 2022 and March 2023. The Respondent/Applicant inexplicably sat on his laurels, and it was only on 1st August 2023, after the Applicant/Respondent filed an application for execution, that he was sufficiently motivated to file the review application. The said period, in the circumstances of this matter, is unreasonable and cannot be excused. Further, given the circumstances under which it was filed, it would appear to me that the application before me is intended to defeat execution by the Applicant/Respondent.

Do NCAB and or ICAB conduct Arbitration? 25. The entirety of the Respondent/Applicant’s application rests on emails purportedly exchanged with NCAB. Ignoring the loaded question as to whether the emails produced in Court are authentic and came from NCAB or ICAB, there being no certificates to that effect as required by the Evidence Act, the ineluctable conclusion one must draw is that the emails, if they are genuine, are not helpful. I agree with the Applicant/Respondent that the word “currently”, as used in the said emails, does not mean that NCAB or ICAB did not undertake arbitration in 2013 when the award was made. In my view, the emails are of very doubtful utility and not worth the papers they are written on.

26. Are family disputes arbitrable? Whereas there is a commonly held belief that they are not, on public policy grounds, the truth is that such disputes are arbitrable in Kenya. For one, the Arbitration Act does not expressly state that family disputes are non-arbitrable. Secondly, Kenyan courts have determined that they are.

27. As a matter of fact, arbitration by NCAB has been the subject of litigation. In paragraph 32 of my previous decision, I referred to the decision of the Court of Appeal in TSJ v SHSR [2019]eKLR, where it was held in paragraphs 37, 38 and 45 thereof as follows:-“37. As the Court noted in Kenya Oil Company Ltd & another v Kenya Pipeline Company Ltd(above) arbitration is underpinned by the principle of party autonomy that as long as it does not offend the strictures imposed by law, parties in a relationship have the right to choose their own means of resolving disputes without recourse to the courts. Indeed, the learned Judge of the High Court appears to have been alive to this principle when he expressed, in somewhat contradictory terms to what he concluded, that his decision;“…does not however preclude a body such as the Board from arbitrating over disputes relating to custody and maintenance of children where both parties submit to the authority of such a body by agreement.”38. That was precisely the situation here. The learned Judge appears to have overlooked that the parties had indeed submitted to the authority of the Arbitration Board by dint of their religious edict under their constitution. Instructively, it was the husband who had approached the Arbitration Board and commenced the divorce proceedings before it. The same person was to turn around later, perhaps not happy with the arbitral award, to claim want of jurisdiction. The Arbitration Board exercised its powers in accordance with its mandate under its constitutive instrument. The Judge erred in holding that it exceeded its mandate.45. Consequently, we allow the appeal and set aside the ruling of the High Court given on 5th June 2014. We substitute therefor an order allowing the appellant’s application dated 18th February 2013 in terms of prayer 2 thereof that the arbitral award dated 15th September 2012 given by His Highness Prince Agha Khan Shia Ismailia Conciliation and Arbitration Board for Nairobi be forthwith recognized and enforced as an arbitral award.

28. The parties hereto entered into a marriage contract on 26th November 2000, which is provided in paragraph 6 as follows: -“we further declare that in the event of any dispute arising between us, at any time in the future in relation to our marriage or pertaining thereto, we shall refer the same to His Highness Prince Aga Khan Shia Imami Ismaili Conciliation and Arbitration Board having jurisdiction in accordance with the Constitution of Shia Imami Ismaili Muslims and the decision of the said Board or any appeal therefrom shall be final conclusive and binding upon us and each of us, and we hereby agree to abide by such decision”

29. This is not the first time an application has been made in this matter to set aside the arbitral award. As earlier stated, the first application failed after M. Thande, J declined to extend the time for filing of the application to set aside the award. This time around, the Respondent failed to even apply for an extension of time. That, in my view, renders this application fatally defective. I say so as the Arbitration Act provides specific timelines which must be followed. It states that:-“35. Application for setting aside arbitral award(1)Recourse to the High Court against an arbitral award may be made only by an application for setting aside the award under subsections (2) and (3).(2)An arbitral award may be set aside by the High Court only if—(a)the party making the application furnishes proof— (i)that a party to the arbitration agreement was under some incapacity; or(ii)the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, the laws of Kenya; or(iii)the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or(iv)the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside; or(v)the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless that agreement was in conflict with a provision of this Act from which the parties cannot derogate; or failing such agreement, was not in accordance with this Act; or(vi)the making of the award was induced or affected by fraud, bribery, undue influence or corruption;(b)the High Court finds that—(i)the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or(ii)the award is in conflict with the public policy of Kenya.(3)An application for setting aside the arbitral award may not be made after 3 months have elapsed from the date on which the party making that application had received the arbitral award, or if a request had been made under section 34 from the date on which that request had been disposed of by the arbitral award”. (emphasis added).

30. I must also point out that the application is based on misapprehension of facts. The decision adopted by my brother Judge was not made by NCAB, but by ICAB in an appellate capacity. Had Respondent/Applicant been diligent, he would have sought to establish if ICAB had the jurisdiction to make the determination it made.

31. The Respondent/Applicant has treated court proceedings with disdain. He failed to appear in court to defend himself when the award was lodged. It was only when it was adopted that he found time, from his busy schedule, to challenge the adoption of the award. When the adoption of the award was set aside, he took no further interest in the matter. It is now, when the Applicant/Respondent is trying to execute the award, that he has found time to come to court. By so doing, he is abusing the process of court and bringing our judicial system into disrepute.

32. Litigation, in any case, must come to an end. A successful party in litigation must enjoy the fruits of judgment or award in his/her favour.

33. It must be clear now that I have found no merit in the applicant. The same is dismissed.

34. Regarding the Applicant/Respondent’s Amended Application for Execution, the Court finds and holds that it is merited. I allow the same as prayed with no orders as to costs.

35. Who should bear the costs of the two applications? The Respondent/Applicant, has, in my view, abused the court process, by filing a very frivolous application. It is only fair and just that he be condemned to pay the costs of the application. However, as the Applicant/Respondent is a lay litigant, she will only recover the actual expenses that she expended in defending herself.Orders accordingly.

DELIVERED, DATED AND SIGNED THIS 27TH DAY OF OCTOBER 2023 MOMBASA VIA MICROSOFT TEAMSGREGORY MUTAIJUDGEIn the presence of: -Mr. Nyamu for the Respondent/ApplicantMs. Taurat Punjani (Applicant/Respondent)