[2002] KEHC 102 (KLR)
The District Officer, Gatundu, was expressly ordered by the court on 17th April, 2001 to make a report regarding the situation on the ground. Instead, the District Officer conducted arbitration proceedings and issued an award, thereby exceeding the authority granted by the court order. The court found that this...
Source-derived case information.
- Citation
- [2002] KEHC 102 (KLR)
- Parties
- Applicant: Samuel Kimani Mutu; Respondent: Wambui Gathina; Respondent: Mumbi Gathina; Respondent: Thiundiu Gathina; Respondent: Phelomena Njamib Mutu & Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 983 of 1995
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Award
- Outcome
- application allowed; award set aside
- Legal Topics
- Succession Disputes, Court Orders Ultra Vires, Arbitration Awards, Powers of District Officer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kimani Mutu
Applicant
Wambui Gathina
Respondent
Mumbi Gathina
Respondent
Thiundiu Gathina
Respondent
Phelomena Njamib Mutu & Others
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Award
Legal Issues
- 1 Whether the District Officer acted ultra vires the court order dated 17th April, 2001 by making an award instead of a report.
- 2 Whether the award made by the District Officer should be set aside on grounds of misconduct or exceeding authority.
Ratio Decidendi
The District Officer, Gatundu, was expressly ordered by the court on 17th April, 2001 to make a report regarding the situation on the ground. Instead, the District Officer conducted arbitration proceedings and issued an award, thereby exceeding the authority granted by the court order. The court found that this action was ultra vires and constituted a sufficient ground to set aside the award, without delving into the merits of the underlying succession dispute. The court therefore set aside the award solely on the basis that the District Officer acted outside the scope of the court's instructions.
Court Disposition
application allowed; award set aside
Orders
- The award made by the District Officer, Gatundu, is set aside as ultra vires the court order dated 17th April, 2001.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI H.C. SUCCESSION CAUSE NO. 983 OF 1995 SAMUEL KIMANI MUTU …………………… OBJECTOR/APPLICANT V E R S U S WAMBUI GATHINA ) MUMBI GATHINA )……… RESPONDENTS THIUNDIU GATHINA ) PHELOMENA NJAMIB MUTU & OTHERS ) R U L I N G The application dated 28th May, 2002 seeks to modify, correct or set aside the award made by District Officer on 18th April, 2002 and read in the court on 29th April, 2002.
Both parties have sworn and filed their respective affidavits. I may not go in details thereof for the purposes of this ruling.
The main contention of the applicant is that the order made by Shaikh Amin J. on 17th April, 2001 directed the District Officer Gatundu to make report as to the situation on ground. It was so ordered by consent of the parties. The District Officer instead of that took upon himself to arbitrate the whole matter and made his finding by way of an award.
According to the applicant’s counsel the said action of the District Officer is ultra vires and is a misconduct.
The Respondent could not much say on the above issue but went on to dwell on the merits of his case and the validity of finding of the District Officer on the basis of such merits.
I am afraid I cannot go into the merits of the case at this stage. I cannot have different view than that contended by the Applicant’s counsel that the award made after the arbitration proceedings by the District Officer, Gatundu is ultra vires the order of the court dated 17th day of April, 2001 and has to be set aside only on that ground.
I so order. The costs of this application shall be in the cause.
Dated and delivered at Nairobi this 9th day of July, 2002.
K. H. RAWAL JUDGE