ADOLFO GITANGA WAKAHIHIA & FOUR OTHERS v MWANGI THION’GO [1986] KECA 93 (KLR)
The bottom line
#A Kenyan court cannot enforce an arbitration award against people who were never summoned or heard — such a judgment is a nullity.
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 was right to dismiss the appellants' application for review of the judgment entered in terms of the arbitration award
- 2.Whether the arbitration before the District Officer was vitiated by the absence of some of the defendants who were never summoned
- 3.Whether a party condemned without a hearing can have the judgment set aside on review on a point of law rather than on fresh evidence
Key legal issues
#Whether judgment entered in terms of an arbitration award against defendants who were never summoned to the arbitration is sustainable
It is not; such a judgment is vitiated and the arbitration proceedings are a nullity as against parties never afforded a hearing.
Two of the five defendants, Gichuhi Wakahihia and Charles Gitonga, did not appear anywhere in the arbitration proceedings and were never summoned, yet the District Officer heard the matter in their absence and the resulting judgment condemned all defendants, including costs. The Court of Appeal held that when this was pointed out on review, the High Court should have held the whole arbitration to be a nullity in the interest of justice and set aside the judgment.
Whether the absence of parties before the arbitrators amounted to misconduct within order XLV rule 15
Yes; holding an arbitration in the absence of parties with no notice, and making an award against parties never before the arbitrators, is misconduct under order XLV rule 15 and grounds under rule 15(1)(b) for setting aside the award.
The court interpreted order XLV rule 15 (cap 21), under which an award may be set aside for misconduct and corruption. It held that conducting an arbitration without all parties present, and where some had no notice of the hearing, is misconduct of the arbitrator; equally, allowing proceedings to commence and making an award affecting parties who were never before them to give evidence falls within rule 15(1)(b).
Whether review can only be granted on discovery of fresh evidence
No; where the complaint is a point of law rendering the proceedings a nullity, review is available without fresh evidence.
Counsel for the respondent argued that review could only be founded on discovery of new and important matters of evidence. Gachuhi Ag JA rejected this, holding that the grievance here was not fresh evidence but a point of law underlying the proceedings whose effect was to render them a nullity, namely judgment imposed on defendants without a hearing. The review should therefore have been allowed.
Legal principles established
#- No person may be condemned to a judgment without being afforded a chance of being heard; being summoned is the means of affording that chance, and a party served who chooses not to attend is bound by the judgment unless he shows cause for his absence.
- Conducting an arbitration without all parties present, where some had no notice of the hearing, is misconduct of the arbitrator justifying setting aside the award, and an award affecting parties who were never before the arbitrators is a nullity.
- A judgment entered against some defendants without a hearing is a point of law going to the root of the proceedings which may be raised on review; it is not confined to discovery of fresh evidence.
Court orders
#- 1.The order of the High Court dated April 19, 1985 dismissing the review application is set aside
- 2.The order for review is granted
- 3.The judgment of the High Court dated April 17, 1984 entering judgment in terms of the arbitration award is set aside
- 4.The proceedings before the arbitrators are set aside
- 5.The case is remitted to the High Court at Nyeri for hearing and determination according to law
- 6.Costs of the appeal and of the proceedings on April 19, 1985 before the High Court are awarded to the appellants in any event
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment. Held that the arbitration before the District Officer was a nullity because two of the five defendants (Gichuhi Wakahihia and Charles Gitonga) were never summoned and did not appear, and judgment was nonetheless entered against all defendants including costs. Allowing the award to stand against parties never heard was misconduct within order XLV rule 15. The High Court should have allowed the review on that point of law rather than requiring fresh evidence.
It is basic law that no one should be condemned, to a judgment passed against him without being afforded a chance of being heardp. 4
Wrote the judgment
Concurred with Gachuhi Ag JA that the application for review should have been allowed, and stated the operative orders setting aside the High Court orders of April 17 and April 19, 1985 and remitting the case to the High Court.
It is manifest that all the parties were not given a proper opportunity of being heard at the arbitration.p. 5
Wrote the judgment
Concurred with the judgments of Gachuhi Ag JA and Hancox JA.
I concur.p. 6
- On appeal from
- High Court of Kenya at Nyeri
- Civil Case No 180 of 1979
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (appeal against the ruling dismissing the application for review)
Relief refused
#Restoration of the order made in Othaya District Magistrate's Succession Case (sought in Zakaria Karanja Wakahihia's motion)
The court remitted the whole suit to the High Court to be heard according to law rather than restoring the succession court distribution
Costs
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.
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: Ruithibo v Nyingi CA 21 of 1982 unreported.
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
#Internal date inconsistency: Zakaria's motion filed February 27, 1985 is described as 'to be heard on February 10, 1985', a date earlier than its filing and inconsistent with the stated hearing of April 10, 1985.
Inconsistent spelling of parties' names within the judgment (e.g. 'Wakahihia', 'Wakahuhia', 'Wakahika', 'Gichuhi', 'Gichuki').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ADOLFO GITANGA WAKAHIHIA & FOUR OTHERS v MWANGI THION’GO [1986] KECA 93 (KLR)", Case Analysis (1986). Civil Appeal No 58 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/93/eng@1986-09-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.