Rimbi v Rimbi & another [1985] KECA 146 (KLR)
The bottom line
#A Kenyan family lost his land appeal because he missed the 30-day deadline to challenge an arbitration award, and the Court of Appeal confirmed no second chances.
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 appeal lay against the consent order of 15 November 1984
- 2.Whether the appellant could attack the judgment entered in terms of the arbitration award of 11 April 1984
- 3.Whether the appellant's application to set aside the award, filed out of time on 15 October 1984, entitled him to relief
Key legal issues
#Whether the appeal lay against the order of 15 November 1984
The court held the appellant could not appeal against that order; the real target was the judgment of 11 October 1984 entered in terms of the award, which could not be attacked after expiry of the 30-day period under Order XLV rule 16.
The memorandum of appeal and submissions showed the appellant was in substance attacking the judgment entered in terms of the arbitration award and the panel's proceedings. Having failed to apply to set aside the award within 30 days of 17 May 1984 when the award was read and explained, judgment was entered under Order XLV rule 17 and no appeal lay except where judgment was not in terms of the award. The appeal was therefore incompetent.
The validity of the arbitration award and proceedings before the panel of elders
The arbitration was properly concluded, all parties were heard, the award was unanimous, and the appellant was fairly treated, receiving extra land as uramati.
The dispute over whether the appellant held the family land in trust for his brothers was referred by consent to a panel of elders chaired by the District Officer, Baricho. All parties and witnesses gave evidence, the award was signed by the panel and the parties, filed in court, read and explained on 17 May 1984. The award gave the appellant 2 acres (half an acre extra) and divided the balance equally between the brothers. The court found nothing unfair in the panel's determination.
Whether the order of 15 November 1984 was truly made by consent
The court doubted that the order could have been a consent order, since the appellant's application to set aside the award was pending and the order extinguished his rights, but this did not give rise to a valid appeal.
The record showed the trial judge considered only the respondents' application and made no mention of the appellant's out-of-time application to set aside the award. All three judges observed it was improbable the appellant knowingly consented. The court noted the record was unclear and the order may in fact have been an order of the court rather than a consent order, but held this did not create a valid appeal against the award-based judgment.
Legal principles established
#- A party wishing to set aside an arbitration award must apply within 30 days of receipt of notice of filing the award in court; thereafter leave to extend time is required.
- Once judgment has been entered in terms of an arbitration award under Order XLV rule 17, no appeal lies against that judgment except where the judgment is not in terms of the award.
- A judge hearing an out-of-time application to set aside an award should expressly determine it, dismiss or record its withdrawal, or otherwise deal with it on the record.
Court orders
#- 1.The appeal is dismissed with costs
- 2.No order as to costs of the application before the High Court (as recorded in the consent order itself)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the leading judgment. Held the appeal was in substance an attack on the judgment entered in terms of the arbitration award, which was barred because no application to set aside the award was filed within 30 days under Order XLV rule 16. Observed the 15 November 1984 order could not properly have been a consent order, but found no valid appeal lay and the award was fairly made.
I find that the appellant’s point of view was well considered by the panel, and a person in his position could not have expected anything better from the panel while dealing with trust land of this nature than he obtained.p. 3
Agreed with Gachuhi Ag JA and reinforced the observation that the 15 November 1984 order could not have been made by consent given the appellant's outstanding application to set aside the award.
I would only reinforce his comment that the order made by the Judge on the 15th November, 1984, could not have been by consent, as the record states, in view of the appellant’s submissions to usp. 3
Agreed with the leading judgment and the proposed order, adding that an order which torpedoed the appellant's rights in the property could not have been by consent.
It is inconceivable that the order made by the Judge on the 15th November, 1984 which torpedoed the rights of the appellant in the property, and caused him a deep sense of grievance, could have been by consent.p. 3
- On appeal from
- High Court
- Civil Appeal No 152 of 1983
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Civil Procedure Act/Appellate Jurisdiction (the judgment does not state the specific provision)
Relief refused
#The appellant's attack on the judgment entered in terms of the arbitration award and on the order of 15 November 1984
The appellant was precluded from attacking the award by lapse of time, judgment having been entered under Order XLV rule 17, and no valid appeal lay against the 15 November 1984 order
Costs
The appeal was dismissed with costs to the respondents
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.
There is no valid appeal before this court notwithstanding what I have stated above. This appeal should be dismissed with costs.
As Nyarangi JA also agrees the appeal is ordered to be dismissed with costs.
any party wishing to set aside an arbitration award must file an application within 30 days of receipt of notice of filing the award in Court.
Under Order XLV rule 17, judgment having been entered, no appeal could be filed against the judgment except where judgment is not in terms of the award.
It is inconceivable that the order made by the Judge on the 15th November, 1984 which torpedoed the rights of the appellant in the property, and caused him a deep sense of grievance, could have been by consent.
Issues in the judgment
#Internal inconsistency in the appellant's application dates: the judgment refers to an application dated 15th October 1984 in one passage but 'the respondent’s application of the same date' although the respondent's application is earlier stated as filed on 16th October 1984.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rimbi v Rimbi & another [1985] KECA 146 (KLR)", Case Analysis (1985). Civil Appeal (High Court Civil Appeal No 152 of 1983 referred as the decision below). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/146/eng@1985-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.