WASIKE V SWALA [1985] KECA 126 (KLR)
The bottom line
#Kenya's Court of Appeal voided an arbitration and land sale conducted without party consent, a signed award, filing on time, and Land Control Board approval.
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 High Court appeal was competent and whether the parties consented to the reference to arbitration
- 2.Whether the arbitration proceedings and award were valid, given the district commissioner did not chair them and the award was unsigned and filed out of time
- 3.Whether the land transaction was void for want of Land Control Board consent under section 6(2) of the Land Control Act (cap 302)
- 4.Whether the resident magistrate had jurisdiction over a suit whose subject matter exceeded his statutory pecuniary limit
Key legal issues
#Consent to arbitration reference
The magistrate acted without the parties' consent when he referred the dispute to arbitration on his own motion; the reference was invalid.
Order XLV rule 1 permits a reference only where all parties interested agree and jointly apply for an order of reference. The record showed no such agreement by either side. The appellant's contention that arbitration could be ordered against a party's wishes was wrong. The Magistrate's Jurisdiction (Amendment) Act No 14 of 1981, requiring land disputes to be referred to elders, was not in force until December 31, 1981, after these events.
Validity of the arbitration proceedings and award
The proceedings were a nullity: the district commissioner never chaired them, merely endorsing the elders' decision, the award was unsigned, and it was filed on September 10, 1981, beyond the June 19, 1981 deadline with no extension application.
The order of reference required the district commissioner to arbitrate with the assistance of elders; he alone could not arbitrate, nor could the elders. He was duty bound to conduct the proceedings personally, ensuring natural justice. His failure to sign the award violated Order XLV rule 10, and the late filing breached Order XLV rule 4(2), with no application under rule 8 to extend time. The magistrate could not therefore act on the award.
Land Control Board consent
The sale of the 16-acre plot was void because no Land Control Board consent was ever sought or given, the transaction falling outside the exemptions in section 6(3).
It was common ground that the divisional land control board gave no consent and no application was made. Section 6(2) of the Land Control Act (cap 302) renders such transactions void for all purposes. The exemptions for transmission by will, government transactions, the Settlement Fund Trustee and the County Council did not apply, though Platt Ag JA noted the ambit of section 6(3)(b) was not fully argued.
Pecuniary jurisdiction of the resident magistrate
The resident magistrate had no jurisdiction, as the subject matter's value of at least Kshs 30,000 exceeded his limit of Kshs 20,000.
The purchase price paid was Kshs 30,000 and possibly as much as Kshs 45,000. The magistrate's powers, raised from Kshs 6,000 to Kshs 20,000 with effect from January 5, 1981 by Gazette Notice 70 of 1981, were still insufficient. Proceedings before a court without jurisdiction are a nullity, leaving the plaintiff free to pursue his claim in the proper court.
Legal principles established
#- A court-ordered reference to arbitration under Order XLV rule 1 requires the express agreement of all parties interested; arbitration cannot be ordered against the wishes of a party.
- An award unsigned by the appointed arbitrator and filed out of the time fixed by the order of reference is a nullity on which judgment cannot be entered.
- A land transaction to which the relevant Land Control Board has not granted consent is void under section 6(2) of the Land Control Act (cap 302).
- A magistrate court lacks jurisdiction where the value of the subject matter exceeds the magistrate's statutory pecuniary limit.
Court orders
#- 1.Appeal dismissed with costs
- 2.Appellant entitled to refund of the money paid in the course of the dealing (per Nyarangi JA)
- 3.Proceedings in the resident magistrate's court declared a nullity (per Platt Ag JA)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the leading judgment. Held the arbitration was a nullity: the district commissioner did not chair the proceedings (the assistant chief did), he merely endorsed the elders' decision, the award was unsigned and filed out of time, and the land transaction was void for lack of Land Control Board consent. Would dismiss the appeal with costs, the appellant being entitled to a refund of monies paid.
The irregularity to conduct the arbitration proceedings under order of the court coupled with the failure of the district commissioner to sign the award as is mandatory requirement of Order XLV rule 10 cap 21 is in my view fatal and renders the entire arbitration proceedings null and void and of no effect.p. 2
Wrote the judgment
Agreed with the result but would go further: declare the proceedings in the resident magistrate's court a nullity for want of jurisdiction, since the parties never consented to the reference, no arbitration was held, and no award was made. Otherwise dismissed the appeal with costs.
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
Agreed there was no valid reference to arbitration since all interested parties must consent, noted the Magistrate's Jurisdiction (Amendment) Act 1981 was not yet in force, and held the resident magistrate lacked jurisdiction as the subject matter (Kshs 30,000-45,000) exceeded his statutory limit of Kshs 20,000. Dismissed the appeal with costs.
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, formerly the plaintiff and defendant.p. 3
- On appeal from
- High Court at Eldoret
- Civil Appeal No 2 of 1982
- Jurisdiction invoked
- Second appeal to the Court of Appeal from the High Court (Civil Appeal No 6 of 1983)
Relief refused
#Appellant's prayer to have the award upheld and the land transferred to him
No valid award was made or filed, and the transaction was void for lack of Land Control Board consent
Costs
Appeal dismissed with costs (the appellant to pay the respondent's costs)
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.
In the result I would dismiss the appeal with costs.
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.
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.
The irregularity to conduct the arbitration proceedings under order of the court coupled with the failure of the district commissioner to sign the award as is mandatory requirement of Order XLV rule 10 cap 21 is in my view fatal and renders the entire arbitration proceedings null and void and of no effect.
The transaction was therefore void for all purposes by virtue of section 6(2) of the relevant Land Control Act (cap 302)
Issues in the judgment
#The judgment records the High Court judge as 'Mabaya J' in the heading but as 'Mbaya J' in the body, an internal spelling inconsistency.
The judgment contains a typographical error in the summation passage: 'made an filed in court'.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- MAIRI vs NGONYORO “B” [1986] KECA 86 (KLR)[1986] KECA 86 (KLR)18 Nov 1986followed
- Nyangau v Nyakwara [1985] KECA 67 (KLR)[1985] KECA 67 (KLR)19 Jun 1985followed
Cite this brief
#Cite this brief
Caselaw, "WASIKE V SWALA [1985] KECA 126 (KLR)", Case Analysis (1985). Civil Appeal No 6 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/126/eng@1985-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.