NDEGWA v NDEGWA [1986] KECA 14 (KLR)
The bottom line
#If you miss the 30-day deadline to challenge a Kenyan arbitration award, you cannot appeal the court judgment that enforces it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal lies from a decree entered in accordance with an arbitration award
- 2.Whether the appellant's summons to set aside the award was filed out of time
- 3.Whether the delay in filing the application to set aside the award should be excused
- 4.Whether there was misconduct on the part of the arbitrators or umpire justifying setting aside the award
Key legal issues
#Competence of appeal from a decree on an award
The appeal was incompetent because the decree was in accordance with the award and no appeal lies from such a decree
Order XLV rule 17(2) confines appeals from decrees entered on awards to cases where the decree exceeds or departs from the award. The decree faithfully reflected the award, so the Court of Appeal could not entertain the appeal. The proper remedy was a timely application to set aside the award, which the appellant failed to make.
Time limit for applying to set aside an award
The application filed on October 27, 1983 was out of time, being more than thirty days after the appellant received notice of the filing of the award and heard it read out
Order XLV rule 16 requires an application to set aside an award within thirty days. The appellant heard the award read out on September 20, 1983 with his advocate and knew the result, having even written to the Attorney-General asking the High Court to set it aside. The delay was not excusable.
Grounds for setting aside an award
Misconduct of the arbitrators or umpire is the only ground for the High Court to set aside an award under Order XLV rule 15(1), and none was established
The appellant's complaint centred on his mother's earlier unsuccessful suit in the resident magistrate's court, but that result was not relevant to the other respondents' claims in the originating summons. He participated in the consented arbitration and was heard with his witnesses, so no misconduct vitiating the award was shown.
Legal principles established
#- No appeal lies from a decree entered in accordance with an arbitration award except in so far as the decree is in excess of, or not in accordance with, the award
- An application to set aside an arbitration award must be filed within thirty days; a party who fails to do so cannot appeal from the decree that follows
Court orders
#- 1.The appeal was struck out so far as all the respondents are concerned save for the fourth respondent, Ndirangu Ndegwa
- 2.No order as to the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- null
- Jurisdiction invoked
- First appeal under the Civil Procedure Rules from a decree entered in accordance with an arbitration award (Order XLV rule 17(2))
Relief refused
#Appeal against the decree entered in accordance with the arbitration award
No appeal lies from a decree in accordance with an award except where it is in excess of or not in accordance with the award, and the appellant did not apply in time to set the award aside
Setting aside the arbitration award for alleged misconduct of the arbitrators
The result of the mother's earlier suit was not relevant to the respondents' claims, so misconduct was doubtful
Costs
There will be no order as to the costs of the appeal.
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.
Now no appeal lies from such a decree except in so far as the decree is in excess of, or not in accordance with, the award. Order XLV rule 17(2).
The appeal was incompetent and must be struck out so far as all the respondents are concerned save for the fourth, Ndirangu Ndegwa, who was not served with the hearing notice by the appellant and therefore did not attend the hearing of it. There will be no order as to the costs of the appeal.
it is doubtful that there was misconduct on the part of the arbitrators or umpire which would have been the only ground for the High Court to set aside the award. Order XLV rule 15(1).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NDEGWA v NDEGWA [1986] KECA 14 (KLR)", Case Analysis (1986). Civil Appeal No 76 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/14/eng@1986-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.