Cleophas Wasike v Swala [1985] KECA 66 (KLR)
The bottom line
#Kenya's Court of Appeal voided a land sale and an elders' arbitration: no consent, no land board approval, no jurisdiction.
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 reference of the dispute to the district commissioner and elders without the parties' consent was valid
- 2.Whether a valid arbitration award was made and filed within the time fixed by the court
- 3.Whether the transaction was void for want of land control board consent under the Land Control Act (cap 302)
- 4.Whether the resident magistrate had jurisdiction to entertain the suit
Key legal issues
#Consent to reference of suit matters to arbitration
The magistrate's own-motion reference to the district commissioner and elders was invalid because all parties interested must agree to a reference under Order XLV rule 1.
Order XLV rule 1 permits a reference only where all parties interested agree. The record showed no agreement by either side. Even a bilateral arbitration clause requires rights of reference by both parties. The Magistrate's Jurisdiction (Amendment) Act No 14 of 1981, requiring reference of land disputes to a panel of elders, only came into force on December 31, 1981, after these proceedings.
Validity of the award
No valid award was made: the district commissioner did not personally chair the proceedings, merely endorsing the elders' decision, the award was filed after the deadline of June 19, 1981 with no extension, and the proceedings were therefore a nullity.
The order of reference required the district commissioner to arbitrate with the assistance of elders, but he did not attend or chair; the assistant chief did. Endorsement of the elders' decision was insufficient. The award was also unsigned and filed out of time without any application under Order XLV rule 8 to extend time, rendering it a nullity on which the magistrate could not enter judgment.
Effect of absence of land control board consent
The sale was void for all purposes under section 6(2) of the Land Control Act (cap 302) because no consent was applied for or given, and no exception in section 6(3) applied.
It was common ground that no application for consent was ever made. The transaction was not a transmission by will and involved neither the government, the Settlement Fund Trustee nor the County Council, so the section 6(3) exceptions did not apply. The buyer's remedy was limited to a refund of monies paid.
Magistrate's jurisdiction
The resident magistrate had no jurisdiction to hear the suit because the value of the subject matter (Kshs 30,000 to 45,000) exceeded his statutory limit of Kshs 20,000.
Hancox JA observed that the magistrate's powers had been increased only to Kshs 20,000 with effect from January 5, 1981, while the suit concerned a plot bought for Kshs 30,000 and possibly worth Kshs 45,000. The proceedings were therefore a nullity, leaving the plaintiff free to pursue his claim in the right court.
Legal principles established
#- A reference to arbitration under Order XLV rule 1 of the Civil Procedure Rules requires the agreement of all parties interested; arbitration cannot be ordered against the wishes of a party.
- A land transaction requiring land control board consent for which no consent was obtained is void under section 6(2) of the Land Control Act (cap 302).
- An arbitration award filed out of the time fixed by the court, without an extension, is a nullity; the arbitrator must personally conduct the proceedings in accordance with natural justice.
Court orders
#- 1.The appeal was dismissed with costs
- 2.There will be orders accordingly (giving effect to the dismissal)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote a separate concurring judgment agreeing the appeal should be dismissed but proposing that the resident magistrate's proceedings be declared a nullity, and reserving final view on whether the transaction was void for lack of land control board consent.
I would order that the proceedings in the resident magistrate's court be declared to be a nullity but otherwise the appeal should be dismissed with costs.p. 3
Wrote the judgment
Wrote a separate concurring judgment agreeing there was no valid reference to arbitration since all parties must agree, noting the magistrate lacked jurisdiction over the value of the subject matter, and that the appeal should be dismissed with costs.
I agree, therefore, for these and the other reasons stated by Nyarangi JA and Platt Ag JA, that the appeal from his decision should be dismissed with costs.p. 3
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Second appeal to the Court of Appeal from the High Court
Relief refused
#The appellant's prayer that the appeal be allowed and the magistrate's judgment in his favour be restored
There was no valid reference to arbitration, no valid award, and the transaction was void for lack of land control board consent
Refund claim pressed by way of the appeal
The court noted the entitlement to a refund of monies paid but dismissed the appeal, leaving substantive relief to the right forum
Costs
The appeal was dismissed with costs 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.
It is thus the essence of an arbitration that the reference thereto is made with the express agreement of all parties interested, in this case the appellant and the respondent
The transaction was therefore void for all purposes by virtue of section 6(2) of the relevant Land Control Act (cap 302)
The senior resident magistrate accepted and acted on an award which had been filed in his court long after the elapse of the time fixed under Order XLV rule 4(2) for the making of the award. But the award was a nullity.
In the result I would dismiss the appeal with costs.
I agree, therefore, for these and the other reasons stated by Nyarangi JA and Platt Ag JA, that the appeal from his decision should be dismissed with costs.
Issues in the judgment
#Platt Ag JA and Hancox JA each wrote separate concurring judgments proposing slightly different dispositions (declaration of nullity by Platt Ag JA), yet the final orders record only dismissal of the appeal with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mturi & another v Diamond Trust Bank Kenya Limited & another (Civil Appeal (Application) E142 of 2025) [2026] KECA 54 (KLR)[2026] KECA 54 (KLR)30 Jan 2026
Cite this brief
#Cite this brief
Caselaw, "Cleophas Wasike v Swala [1985] KECA 66 (KLR)", Case Analysis (1985). Civil Appeal (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/66/eng@1985-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.