Jotham Gichuki Ruhara v Wangui Kabuga & another [1986] KECA 74 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once a court enters judgment on an arbitration award, you can only appeal if the decree exceeds or contradicts the award.
What this practically means
#Executive summary
#Key legal issues
#Competence of an appeal from a judgment entered in terms of an arbitration award under Order XLV rule 17
The appeal was incompetent. Proceedings based on arbitration under Order XLV are terminated on judgment being entered under rule 17, to which no appeal lies, unless other proceedings are commenced under a different provision of law.
The court, following its earlier decision in Samuel Mwai Rimbi v Josphat Mugo Rimbi, held that once judgment is entered in terms of an arbitration award under Order XLV rule 17, the arbitration proceedings are terminated and no competent appeal can be filed against that judgment. The only appealable complaint is that the decree is in excess of, or not in accordance with, the award, and this appeal was not so based.
Reconciliation of Order XLV rule 17(2), Order XLII rule 1(1)(bb) and section 75(1)(h) of the Civil Procedure Act
The apparent conflict is resolved by reading Order XLV rule 15(1) as cutting down Order XLII rule 1(1)(bb): an appeal as of right lies only on the ground that the decree is in excess of, or not in accordance with, the award; on any other ground leave is required.
Kneller JA reasoned that although Order XLII rule 1(1)(bb) allows an appeal as of right from orders under Order XLV rules 13 and 15, rule 15(1) comes after and cuts it down. A decree in excess of, or not in accordance with, an award must be subject to a right of appeal, but once an award survives an application to set it aside there is no compelling need to allow an appeal on any other grounds. The draftsman's scheme must be made to work.
Merit of the appellant's objections to the arbitration award
The objections were unfounded: Mathenge Kanuru's exclusion from the panel caused no prejudice as he gave evidence for the appellant, and the elders properly found the three daughters to be the lawful heirs.
The court noted that the deceased had shared his other pieces of land to his daughters without dispute, and that the award by the elders was one of the best the court could think of. The appellant's fear that his brothers would claim shares was unfounded and could not be the basis of the appeal. The award was just and should not be altered.
Legal principles established
#- Proceedings based on arbitration under Order XLV of the Civil Procedure Rules are terminated by judgment entered under rule 17, and no appeal lies from that judgment except in so far as the decree is in excess of, or not in accordance with, the award.
- The right of appeal from an order refusing to set aside an arbitration award under Order XLV rule 15(1) exists only on the ground that the resulting decree is in excess of, or not in accordance with, the award; otherwise leave of the High Court or the Court of Appeal is required.
Court orders
#- 1.The appeal is struck out
- 2.The appellant will pay costs of the appeal to the respondents
- On appeal from
- High Court of Kenya at Nyeri
- Civil Case 70 of 1980
- Jurisdiction invoked
- Order XLV rule 17(2) of the Civil Procedure Rules; section 75(1)(h) of the Civil Procedure Act; Order XLII rule 1(1)(bb) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jotham Gichuki Ruhara v Wangui Kabuga & another [1986] KECA 74 (KLR)", Case Analysis (1986). Civil Appeal 35 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/74/eng@1986-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.