Mairi v Ngonyoro “B” & another [1986] KECA 49 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an arbitrator's award because the parties referred only some issues to arbitration and filed the award late.
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 order by consent referring the dispute to arbitration by elders under the chairmanship of the District Officer Kandara on three stated issues complied with Order 45 rule 1 of the Civil Procedure Rules
- 2.Whether the award made by the elders was valid
Key legal issues
#Scope of an order of reference under Order 45 rule 1
The phrase 'any matter in difference between them in such suit' refers to all disputed matters in the pleadings; a partial reference omitting some issues is non-compliant.
The court construed Order 45 rule 1 literally: an application for an order of reference must encompass all matters in difference which the court refers to the arbitrator. Restricting the reference to a number of selected issues risks omitting some matters of difference. This is reinforced by Order 45 rule 3(2), which bars the court from dealing with a referred matter in the suit, and by rule 11, under which an arbitrator could not state an award as to the whole unless the reference was to the whole matter.
Effect of a bar on court dealing with a referred matter
After a reference to arbitration, the court cannot hear the matter or any part of it while the arbitration is pending; selecting a few issues for arbitration as if the remainder could be decided by the court is an error.
Order 45 rule 3(2) provides that where a matter is referred to arbitration, the court shall not, save as provided in the order, deal with such matter in the suit. The scheme of Order 45 (rules 5, 7, 8, 11, 12, 13, 14, 15 and 17) assumes a complete reference of all matters in dispute, with the court supervising the arbitration, not retaining jurisdiction over residual issues. Hence a split reference is inherently defective.
Validity of an award made out of time
An award filed out of time, where the parties filed no written agreement extending time and the court was not moved to extend time under Order 45 rule 8, is a nullity.
The award was filed out of time. Order 45 rule 8(1) contemplates a written agreement by the parties to extend the time for making the award, and rule 8(2) a court extension on application. Neither occurred here. Following prior decisions of this court, an award made out of time in those circumstances is a nullity and falls to be set aside.
Legal principles established
#- A reference to arbitration under Order 45 rule 1 must encompass all matters in difference in the suit; a reference restricted to selected issues is not in compliance with Order 45 rule 3(1).
- Once a matter is referred to arbitration, the court may not hear or determine that matter or any part of it during the pendency of the arbitration.
- An award made out of time, without a written agreement to extend time or a court extension, is a nullity.
Court orders
#- 1.Appeal allowed
- 2.Judgment and order of Porter J made on November 9, 1983 set aside
- 3.Originating summons remitted to the High Court for that court to deal with
- 4.Costs of the appeal and of the proceedings before the High Court awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment holding that a reference to arbitration under Order 45 must encompass all matters in difference in the pleadings, and that an award made out of time without extension is a nullity.
In my judgment, the phrase, “any matter in difference between them in such suit” refers to all disputed matters in the pleadings.p. 1
- On appeal from
- High Court
- Civil Suit No. 2638 of 1980
- Jurisdiction invoked
- First appeal to the Court of Appeal against a decision of the High Court (appellate jurisdiction under the Constitution/Attorney-General's reference not expressly stated in the judgment)
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 my judgment, the phrase, “any matter in difference between them in such suit” refers to all disputed matters in the pleadings.
I would say that compliance with order 45 rule 3(1) requires all matters in dispute to be referred to arbitration.
It follows that after a reference to arbitration by an order of court, the court could not hear the matter or any part thereof during the currency or pendency of arbitration.
The award filed in court was therefore a nullity
I would allow the appeal, set aside the judgment and order of Porter J made on November 9, 1983 and order that the originating summons be remitted to the High Court for that court to deal with.
I would award the costs of this appeal and of the proceedings before the High Court to the appellant.
Issues in the judgment
#Internal inconsistency: the judgment states 'Platt and Apaloo JJA agree' although the coram and signature block name Nyarangi, Platt and Gachuhi JJA, with no Apaloo JA on the bench.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mairi v Ngonyoro “B” & another [1986] KECA 49 (KLR)", Case Analysis (1986). Civil Appeal No. 117 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/49/eng@1986-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.