[2008] KEHC 3142 (KLR)
The court found that the arbitration award was not invalidated by the fact that the arbitrators signed on different pages, as both the District Land Registrar and the District Surveyor prepared and signed their respective reports, and were in agreement regarding the boundary dispute. The evidence showed that both...
Source-derived case information.
- Citation
- [2008] KEHC 3142 (KLR)
- Parties
- Plaintiff: Zablon Agira Maseno; Defendant: Mariko Omolo Ochuodho
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 520 of 1993
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Arbitration Award
- Outcome
- application dismissed with costs
- Judges
- DK Musinga
- Legal Topics
- Arbitration Award Challenge, Boundary Disputes, Consent Orders, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zablon Agira Maseno
Plaintiff
Mariko Omolo Ochuodho
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Arbitration Award
Legal Issues
- 1 Whether the arbitration award should be set aside for lack of signatures by both arbitrators.
- 2 Whether the exclusion of witnesses and participation of local chiefs rendered the arbitration proceedings invalid.
- 3 Whether the filing of two awards contravened the consent order.
Ratio Decidendi
The court found that the arbitration award was not invalidated by the fact that the arbitrators signed on different pages, as both the District Land Registrar and the District Surveyor prepared and signed their respective reports, and were in agreement regarding the boundary dispute. The evidence showed that both parties had the opportunity to call witnesses, and there was no proof that the applicant's witnesses were excluded. The participation of the area Chief and Assistant Chief did not occasion any prejudice to the parties. The filing of two reports reflected the technical and substantive aspects of the arbitration, not a breach of the consent order. Accordingly, the application to...
Court Disposition
application dismissed with costs
Orders
- The application dated 28th August 1998 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA OF KISII
Civil Case 520 of 1993
ZABLON AGIRA MASENO …………….……………. PLAINTIFF
VERSUS
MARIKO OMOLO OCHUODHO …………………. DEFENDANT
RULING
The applicant filed an application dated 28th August 1998. The same was made pursuant to the provisions of Order XLV rule 15(1) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. He urged that the arbitration award filed herein be set aside and the court proceeds to hear the suit.
The application was made on grounds that:
(a)The award was not signed by the parties who made it.
(b)The witnesses were not allowed to testify at the arbitration proceedings.
(c)The arbitrator allowed the participation of the area Assistant Chief and Chief.
(d)There are two awards filed contrary to the terms and spirit of the consent order that was entered into before the arbitration was undertaken.
The application was supported by an affidavit sworn by the applicant. He deposed that according to a consent order made on 20th November, 1997, the matter in dispute was referred to the District Land Registrar, Kisii, and the District Surveyor, Kisii, for arbitration. The award that was filed on 2nd July, 1998 was not signed by the two arbitrators, it was signed by the District Land Registrar, only. He further deposed that witnesses were not allowed to testify whereas the area Assistant Chief was allowed to participate in the arbitration.
Mr. Soire for the respondent opposed the application. He stated that the award was signed by the two arbitrators, but on different pages. He added that there was nothing to show that the applicant’s witnesses were prevented from testifying.
I have looked at the award that was filed on 2nd July 1998. It shows that during the arbitration proceedings, the applicant had three witnesses and the respondent had three witnesses as well. They all testified including the area Chief and Assistant Chief. No prejudice was occasioned to either of the parties by the testimonies of those witnesses.
At some point, the Land Registrar requested the Deputy District Surveyor to use the area map to determine the boundary between the applicant’s parcel of land and the respondent’s parcel of land. The surveyor proceeded to take several measurements and was able to establish the true boundary. He signed his report that pertained to the technical work that he did. The Land Registrar also prepared his report and signed the same. The two Officers were in agreement as regards their findings over the boundary dispute.
I find no merit in the applicant’s application and I dismiss the same with costs.
DATED, SIGNED and DELIVERED at KISII this 7th day of May, 2008.
D. MUSINGA
JUDGE
Delivered in the open court in the presence of:
Mr. Soire for the plaintiff
Mr. Ochwangi HB Mr. Ochillo for the Defendant
D. MUSINGA
JUDGE