Kibutha v Kibutha [1984] KECA 49 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a fairly conducted arbitration award over family land stands, even if its procedures differ from court practice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge erred in refusing to set aside the arbitration award for alleged misconduct under order XLV rule 15 of the Civil Procedure Rules
- 2.Whether the judge erred in failing to invoke his inherent powers under section 3A of the Civil Procedure Act (cap 21)
- 3.Whether the alleged procedural irregularities in the arbitration amounted to misconduct
Key legal issues
#Availability of the court's inherent jurisdiction under section 3A alongside the arbitration rules
Section 3A has no application where the arbitration rules afford ample specific remedies.
The rules permit the court to modify or correct an award (rule 13), remit it (rule 14) or set it aside for corruption or misconduct (rule 15). Because these provisions adequately protect a complaining party, there are no special circumstances justifying recourse to inherent jurisdiction. The court distinguished Rawal v Mombasa Hardware, which concerned order XVI rule 6, a special provision with no counterpart in the arbitration scheme.
Whether alleged procedural irregularities amounted to misconduct under order XLV rule 15(1)(a)
Informal arbitration procedure is not misconduct where both sides were heard and could question and call witnesses.
The panel of elders, including the appellant's own nominees, heard both parties and their witnesses, gave brief written reasons, and correctly confined the dispute to 30.6 acres. The appellant's nominees participated in and signed the award without protest, which weighed heavily against any claim of unfair procedure. Courts are slow to interfere with awards where parties chose arbitration.
Legal principles established
#- Where the arbitration rules provide specific remedies (modify, remit, set aside), the court's inherent jurisdiction under section 3A is not available.
- Arbitration procedure need not conform technically with court procedure; courts will be slow to interfere with an award absent misconduct.
- An arbitration is fair where each party had opportunity to state his case, question the opponent and call witnesses, with reasons given.
Court orders
#- 1.Appeal dismissed with costs; the decision of Aganyanya J refusing to set aside the arbitration award affirmed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment: the arbitration was fairly conducted, no misconduct under order XLV rule 15(1)(a), section 3A inherent jurisdiction unavailable, appeal dismissed with costs.
In these circumstances, I am personally left in no doubt that the arbitration proceedings, if not in literal compliance with court procedure, were fairly conducted and that the result, if not to the liking of the appellant, cannot be described as amounting to misconduct.p. 4
Wrote the judgment
Concurring judgment agreeing with Hancox JA; added that the elders correctly allocated the family land and that the appellant proved no misconduct.
There were no irregularities in the proceedings of arbitration and if there were any they did not amount to misconduct under order XLV rule 15(1)(a) of the Civil Procedure Rules, and I would not say the appellant established any misconduct in his application to set aside the award.p. 4
- On appeal from
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the High Court (Civil Procedure Rules, order XLV relating to arbitration awards)
Relief refused
#Setting aside the arbitration award of July 5, 1982
No misconduct established; arbitration fairly conducted
Costs
Appeal dismissed with costs (costs of the appeal to the respondent)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I do not regard it as essential in arbitration proceedings, on a reference, that the procedure at the hearing should be in technical conformity with that followed in the courts, for if that were so, the reference would in that respect, be superfluous.
It cannot therefore, in my opinion be said that there exist, in this case, special circumstances requiring the application of the court’s inherent powers under section 3A.
In my judgment, the learned judge was correct in exercising his discretion not to set aside the award of the arbitrators, and I would dismiss the appeal with costs.
Generally speaking, the courts will be slow to interfere with the award in an arbitration having regard to the fact that, the parties to the dispute have chosen this method of settling their dispute and have agreed to be bound by the arbitrator’s decision
Issues in the judgment
#The judgment copy does not state the names of the parties or the appeal number; the appeal is noted as being erroneously titled in the names of the original deceased parties.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibutha v Kibutha [1984] KECA 49 (KLR)", Case Analysis (1984). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/49/eng@1984-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.