Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal (No. not stated in judgment)· [1986] KECA 86 (KLR)

MAIRI vs NGONYORO “B” [1986] KECA 86 (KLR)

Court of Appeal of Kenya
18 November 1986
943 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

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

#
This is a Court of Appeal judgment (Nyarangi, Platt and Gachuhi JJA; judgment delivered by Nyarangi JA) arising from Civil Suit No 2638 of 1980 in the High Court, Nairobi, where Porter J on November 9, 1983 dismissed a notice of motion seeking to set aside an arbitrator's award (made by elders under the chairmanship of the District Officer, Kandara) and to have the suit fixed for hearing in the normal way. The appellant appealed. The court framed two questions: whether the consent order of reference, limited to three stated issues, complied with Order 45 rule 1 of the Civil Procedure Rules, and whether the elders' award was valid. Holding that 'any matter in difference between them in such suit' means all disputed matters in the pleadings, the court found that a reference restricted to selected issues does not comply with Order 45 rule 3(1), and that once a matter is referred, the court cannot deal with it or any part of it during the pendency of the arbitration. The court further held the award a nullity because it was filed out of time with no written extension of time by the parties under rule 8(1) and no court extension under rule 8(2), following Bagwasi Nyangau v Omosa Nyakwara and Cleophas Wasike v Mucha Swala. The appeal was allowed, Porter J's judgment and order of November 9, 1983 were set aside, the originating summons was remitted to the High Court, and costs of the appeal and of the High Court proceedings were awarded to the appellant.

Key legal issues

#
01

Scope of an order of reference under Order 45 rule 1 of the Civil Procedure Rules

Holding

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).

Reasoning

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.

p. 2
02

Effect of pendency of arbitration on the court's jurisdiction over referred matters

Holding

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.

Reasoning

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).

p. 3
03

Validity of an award made out of time

Holding

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.

Reasoning

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.

p. 3

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. 1.Appeal allowed
  2. 2.Judgment and order of Porter J made on November 9, 1983 set aside
  3. 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. 4.Costs of the appeal and of the proceedings before the High Court awarded to the appellant

Authorities

#

Legislation

  • Civil Procedure RulesOrder 45 rule 1
  • Civil Procedure RulesOrder 45 rule 3(1)
  • Civil Procedure RulesOrder 45 rule 3(2)
  • Civil Procedure RulesOrder 45 rule 5(1)
  • Civil Procedure RulesOrder 45 rule 5(2)
  • Civil Procedure RulesOrder 45 rule 7(1)
  • Civil Procedure RulesOrder 45 rule 7(2)
  • Civil Procedure RulesOrder 45 rule 8(1)
  • Civil Procedure RulesOrder 45 rule 8(2)
  • Civil Procedure RulesOrder 45 rule 11
  • Civil Procedure RulesOrder 45 rule 12
  • Civil Procedure RulesOrder 45 rule 13
  • Civil Procedure RulesOrder 45 rule 14
  • Civil Procedure RulesOrder 45 rule 15
  • Civil Procedure RulesOrder 45 rule 17

Cases cited (2)

  • Bagwasi Nyangau v Omosa Nyakwara
    Civil Appeal No 83 of 1984
  • Cleophas Wasike v Mucha Swala
    Civil Appeal No 6 of 1983
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)

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.