Nyangau v Nyakwara [1985] KECA 67 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an arbitration award because the arbitrator blocked a key witness and missed the 90-day deadline.
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 arbitrator misconducted himself by refusing the defendant an opportunity to call his fifth witness, Onyando Bonuke
- 2.Whether the arbitrator's conduct of the arbitration outside the 90-day period fixed by the consent reference went to his jurisdiction, rendering the award a nullity, notwithstanding that the point was not raised below
Key legal issues
#Whether refusal to hear a material witness constitutes arbitrator misconduct
Yes. The arbitrator refused the defendant the opportunity to call Onyando Bonuke, a material witness on the ownership of the plot, and failed to answer the allegation in his affidavit; this was misconduct justifying setting aside the award.
The defendant announced five witnesses including himself; only four gave evidence before the record showed 'Close of defence case' in the third person, unlike the plaintiff's first-person closure. Onyando's affidavit showed he waited outside but was never called. The arbitrator's affidavit did not meet this core allegation, and the plaintiff filed no affidavit in answer. The magistrate should not have presumed the defendant dropped the witness. The arbitrator could have adjourned rather than refuse the evidence.
Whether arbitration conducted outside the 90-day period in the consent reference was a nullity for want of jurisdiction
Gachuhi Ag JA and Platt Ag JA held yes: without written agreement or court order extending time under Order XLV rule 8, the reference lapsed and the award was a nullity; the objection went to jurisdiction and could be raised for the first time on appeal. Hancox JA did not consider the delay a jurisdictional matter but concurred in the result.
The consent reference required filing of the award within 90 days; the arbitrator did not commence until March 1982 and dated his award June 5, 1982. Rule 8(1) requires written agreement and rule 8(2) a court application; neither existed. Participation by the parties did not cure the defect. As a trained lawyer, the arbitrator ought to have sought extension before embarking. Jurisdictional objections may be entertained at any stage.
Whether a new point going to jurisdiction may be taken for the first time on appeal
Yes. Applying Kenya Commercial Bank Ltd v James Osebe, although new points of law are generally barred on appeal, an exception exists where the point goes to jurisdiction or illegality.
The judgment adopted the passage from Kenya Commercial Bank Ltd v James Osebe that where the lower court acted illegally or outside its jurisdiction, the appellate court can and must reverse whether or not the point was taken below. Cleophus Wasike v Mucha Swala was cited where an award filed out of time was held a nullity. The point was not taken below but the Court was obliged to act on it.
Legal principles established
#- If an arbitrator refuses a party the opportunity to call a material witness, that amounts to misconduct entitling the award to be set aside
- An objection that an arbitrator acted outside the terms of the reference goes to jurisdiction and may be taken for the first time on appeal, the court being bound to declare such an award a nullity
- Under Order XLV of the Civil Procedure Rules, time for making an award may be extended only by written agreement of the parties or by order of the court; extension cannot be inferred from the parties' conduct
Court orders
#- 1.Appeal allowed
- 2.Order of the learned judge of the High Court dismissing the first appeal set aside
- 3.Order of the Resident Magistrate dismissing the application to set aside the award set aside
- 4.The arbitration award of JMK Osoro set aside
- 5.The arbitration superseded and the suit to proceed to trial before the trial court
- 6.Costs of this appeal, of the first appeal, and of the application to set aside the award awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the lead judgment. Held the arbitrator misconducted himself by refusing the defendant the opportunity to call Onyando Bonuke, a material witness, and further that the arbitration commenced outside the 90-day time limit fixed by the consent reference, going to the root of jurisdiction. Would allow the appeal, set aside the award, and remit the suit to the trial court for hearing.
I find that Onyando Bonuke was a material witness. If the arbitrator was pressed by the time during that day, he could have adjourned the hearing to another dayp. 3
Wrote the judgment
Concurring judgment. Agreed that the misconduct ground succeeded and separately reasoned that the award was a nullity because the arbitrator acted outside the terms of the reference after the 90 days had expired without written agreement or court order extending time under Order XLV rule 8.
But the position in Kenya under order XLV of the Civil Procedure Rules is that there must be either an agreement or an application to extend time.p. 6
Wrote the judgment
Concurring judgment. Agreed the appeal should be allowed on the misconduct ground, finding the probability was that the arbitrator did not permit the appellant to call Onyando. However, unlike his colleagues, he was not persuaded that the delay in commencing arbitration went to the arbitrator's jurisdiction.
I am not, however, persuaded that the hearing of the arbitration over nine months after the reference, in which, as Mr Mainye, for the respondent said, both parties participated fully, went to the root of the arbitrators' authority, and was a matter of jurisdiction.p. 7
- On appeal from
- High Court at Kisii
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a second appeal from the High Court (provision not stated in the judgment)
Relief refused
#Reference of the dispute to another arbitrator
The court instead directed that the trial court supersede the arbitration and proceed with the trial of the suit
Costs
The appellant to have the costs of this appeal, of the first appeal, and of the application to set aside the award in the courts below.
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 would allow this appeal and set aside the dismissal by the learned judge and the learned Resident Magistrate and substitute an order for setting aside the award.
As this Court must now set aside the order of the High Court, it must follow that the award is set aside and that the suit must proceed to hearing under order XLV rule 15 of the Civil Procedure Rules.
As Platt and Gachuhi Ag JJA agree in this result it is so ordered.
In my view, therefore, the application to set aside the award dated June 18, 1982, should have been allowed by the learned Resident Magistrate, and the learned judge on the first appeal should so have held.
Rule 8(1) requires the agreement to extend time to be in writing, and not witnessed merely by conduct.
Issues in the judgment
#The same English authority is spelled inconsistently within the judgment, as 'Oscroft v Benado' in Gachuhi Ag JA's judgment and 'Oscroft v Benabo' in Hancox JA's quotation of the same case.
The judgment is internally inconsistent on the jurisdiction ground: Gachuhi Ag JA and Platt Ag JA hold the out-of-time award a nullity going to jurisdiction, while Hancox JA expressly disagrees that delay was a jurisdictional matter, though all three concur in the result.
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.
- Joseph Mwangi Macharia v Andriano Mugo Wanjohi & another [2004] KECA 98 (KLR)[2004] KECA 98 (KLR)21 May 2004distinguished
Cite this brief
#Cite this brief
Caselaw, "Nyangau v Nyakwara [1985] KECA 67 (KLR)", Case Analysis (1985). Civil Appeal No. 33 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/67/eng@1985-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.