WAKAHIHIA & 4 OTHERS V THIONGO [1986] KECA 84 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an arbitration award made without hearing all parties, confirming no one can be judged unheard.
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 judge erred in dismissing the appellants' application for review of the judgment entered in terms of the arbitration award
- 2.Whether the arbitration proceedings were a nullity because some of the defendants were not present and were not summoned or heard
- 3.Whether an arbitrator commits misconduct by conducting proceedings and making an award affecting parties who were not before them
Key legal issues
#Whether judgment could stand against defendants who neither appeared nor were heard at the arbitration
No. Judgment imposed on parties who were never summoned or heard is vitiated; the court on review should have declared the whole arbitration proceedings a nullity and set the judgment aside.
The land was claimed from five defendants but only two appeared before the District Officer acting as arbitrator; the rest were neither summoned nor present. Nevertheless, all defendants, including those absent, were condemned to pay costs. The court held that when this was raised on review, the judge was bound to investigate and, in the interest of justice, to hold the proceedings a nullity and set aside the judgment and the award.
Whether the absence of parties amounted to arbitrator misconduct justifying setting aside the award
Yes. Conducting arbitration without all parties present, where some had no notice, is misconduct under Order 45 rule 15, and an award affecting parties not before the tribunal to give evidence is misconduct within rule 15(1)(b).
The court treated misconduct and corruption as grounds for setting aside an award under Ord 45 r 15, and held that proceeding in the absence of parties without notice fell within that ground. It further held that allowing proceedings to commence and making an award binding parties who were not before the arbitrators was misconduct under r 15(1)(b), rendering the legality of the award questionable on its face.
Whether review could only be granted on discovery of fresh facts or evidence
No. A review may succeed where the ground is a point of law underlying the proceedings which renders them a nullity, even absent fresh evidence.
The respondent argued that review required discovery of new and important matters or evidence. The court rejected this as a complete answer, holding that the appellants' complaint was not one of fresh evidence but of a point of law going to the root of the proceedings - the failure to hear some defendants - whose effect was to render the proceedings a nullity.
Legal principles established
#- No person may be condemned to a judgment without being afforded a chance of being heard; judgment entered against parties who were never summoned or heard is a nullity.
- Conducting an arbitration without all parties present, and where some had no notice of the hearing, constitutes misconduct of the arbitrator under Order 45 rule 15.
- Where the point underlying an application for review is a point of law that renders the proceedings a nullity, it need not be founded on fresh evidence.
Court orders
#- 1.The order of the High Court dated April 19, 1985 dismissing the application for review is set aside
- 2.The application for review is granted
- 3.The judgment of the High Court dated April 17, 1984 (entered in terms of the arbitrator's award) is set aside
- 4.The proceedings before the arbitrators (the arbitration award) are set aside
- 5.The suit is remitted to the High Court at Nyeri to be proceeded with according to law
- 6.Costs of the appeal and of the proceedings on April 19, 1985 before the High Court awarded to the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the leading judgment allowing the appeal: the arbitration proceeded in the absence of some defendants and judgment was entered against parties never heard; the failure to review the judgment was an error and the whole arbitration proceedings were a nullity.
It was up to the court, when it was pointed out in an application for review that judgment was entered against some defendants without being heard, to hold that the whole arbitration proceedings were a nullity in the interest of justice and the judgment should be set aside.p. 3
Concurred, stating that the application for review should have been allowed because all parties were not given a proper opportunity of being heard at the arbitration, and set out the operative orders.
It is manifest that all the parties were not given a proper opportunity of being heard at the arbitration.p. 4
- On appeal from
- High Court of Kenya at Nyeri
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court dismissing an application for review
Relief refused
#Restoration of the order made in the Othaya DM's court succession case (sought by Zakaria Karanja Wakahihia in his motion)
The court did not grant this relief; it instead remitted the whole suit to the High Court for hearing according to law
Costs
Costs of the appeal and of the proceedings on April 19, 1985 before the High Court are to be the appellants' in any event
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.
It is basic law that no one should be condemned, to a judgment passed against him without being afforded a chance of being heard
To conduct arbitration without all the parties present, and while some had no notice of the hearing is also a misconduct of the arbitrator under the same order and rule.
The point here is not of fresh evidence but the point of law which underlie the proceedings the effect of which render the proceedings a nullity.
The case is remitted to the High Court for hearing and determination according to law. Costs of the appeal and of the proceedings on April 19, 1985, before the High Court, are to be the appellant’s in any event.
Issues in the judgment
#The case name of the first cited authority is spelled inconsistently within the judgment ('Ruithibo v Njingi' in the case list versus 'Ruithibo v Nyingi' in the body); the citation is also garbled as 'Civ Appellant 21 Appellant of 1982' in the body.
The judgment is dated October 6, 1986 in the body but the headnote records the date as October 9, 1986.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "WAKAHIHIA & 4 OTHERS V THIONGO [1986] KECA 84 (KLR)", Case Analysis (1986). Civil Appeal No 58 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/84/eng@1986-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.