MAIRI vs NGONYORO “B” [1986] KECA 86 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an elders' arbitration award because it covered only some disputed issues and was filed 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 consent order 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 of the Civil Procedure Rules
The phrase 'any matter in difference between them in such suit' refers to all disputed matters in the pleadings; an order of reference must cover all matters in difference, and restricting a reference to selected issues is non-compliant with Order 45 rule 3(1).
The court construed Order 45 rule 1 and rule 3(1)-(2) together. Rule 3(2) bars the court from dealing with a referred matter in the suit except as provided in the order, so the court cannot retain part of the dispute. Rule 11 (special case) also presupposes a reference of the whole matter, since an arbitrator cannot state an award 'as to the whole' unless the whole was referred.
Effect of pendency of arbitration on the court's jurisdiction over referred matters
After a reference to arbitration, the court cannot hear the matter or any part of it during the pendency of the arbitration; selecting a few issues for reference while leaving the rest to the court is an error.
The scheme of Order 45 contemplates that once a matter is referred, the court is functus in respect of it, save for the supervisory powers set out in rules 5 to 17 (appointment, process, extension of time, superseding the arbitration, special case, costs, modification, remission, setting aside, and entry of judgment).
Validity of an award made out of time
An award filed out of time, absent a written agreement extending time or a court order extending time under Order 45 rule 8, is a nullity.
Rule 8(1) permits extension of time only by written agreement of the parties and rule 8(2) by the court on application. Neither occurred. Following Bagwasi Nyangau v Omosa Nyakwara and Cleophas Wasike v Mucha Swala, the untimely award was a nullity and could not stand.
Legal principles established
#- An order of reference to arbitration under Order 45 must encompass all matters in difference in the suit; a reference limited to selected issues does not comply with Order 45 rule 3(1).
- Once a matter is referred to arbitration by order of the court, the court cannot hear the matter or any part of it while the arbitration is pending.
- An award made out of time, where the parties did not agree in writing to extend time and the court did not extend time, is a nullity.
Court orders
#- 1.Appeal allowed
- 2.Judgment and order of Porter J made on November 9, 1983 set aside
- 3.The originating summons remitted to the High Court to be dealt with, with liberty for the High Court to consider whether the procedure adopted is proper
- 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.
- On appeal from
- High Court of Kenya, Nairobi
- Civil Suit No 2638 of 1980
- Jurisdiction invoked
- First appeal to the Court of Appeal against a decision of the High Court (statutory first-appeal jurisdiction; no specific provision cited 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.
It is in my opinion, nocompliance with order 45 rule 3(1) to restrict a reference to arbitration by the selection of a number of issues thereby actually omitting or running the risk of omitting, some matters of difference.
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 parties did not file any agreement in writing to extend time for the making of the award (order 45 rule 8 (1)) and the court was not moved to extend time etc (order 45 rule 8(2)). 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. Platt and Apaloo JJA agree. Therefore it is so ordered.
Issues in the judgment
#The coram lists the bench as Nyarangi, Platt and Gachuhi JJA, but the concluding line records agreement by 'Platt and Apaloo JJA', naming a judge (Apaloo) who does not appear in the coram and omitting Gachuhi.
The appeal number of the present matter is not stated anywhere in the judgment; only the High Court suit number appears.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MAIRI vs NGONYORO “B” [1986] KECA 86 (KLR)", Case Analysis (1986). Civil Appeal (No. not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/86/eng@1986-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.