Mark Mutsembi & Others v Isaiah Andati Titiya [1987] KECA 25 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that challenges to an elders' arbitration award must strictly follow Order 45 rules 15 and 16, or the award stands.
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 District Officer as chairman of the panel of elders was obliged to inform the appellants of the decision of the elders
- 2.Whether the appellants were denied a chance to state their case before the panel of elders
- 3.Whether the alleged blindness and illiteracy of Mutsembi Nduku and the defendant's alleged non-disclosure were pursued before the arbitrators
- 4.Whether the District Officer as chairman misconducted himself in handling the request for court proceedings relating to the land
- 5.Whether the learned judge was right in dismissing the application to set aside the arbitration award
Key legal issues
#Whether non-communication of the elders' decision by the District Officer vitiates the award
The District Officer is not entitled to announce the elders' decision; the award is filed in court and pronounced there, so the ground fails.
Under the consent referral and order 45, the panel's decision is filed in court for the court to pronounce; the aggrieved party then has 30 days to apply under rules 15 and 16. Since the appellants did apply and the application was dismissed, no prejudice arises from the District Officer not announcing the decision.
Whether the appellants were denied a fair hearing by the panel
No; the appellants had a common claim and agreed on a spokesman, and they were present and heard.
The heading of the arbitration proceedings referred to four others; since the plaintiffs had a common claim it was unobjectionable for one to speak for them, as indeed happened before the Court of Appeal where only the first appellant spoke and the rest adopted his submissions. The claim of non-disclosure by the defendant was also not pursued before the elders.
Whether children could challenge a sale by their father after his death on the ground of disinheritance under custom
The claim was unsound; possession passed in 1970 during the father's lifetime, and the appellants could not, after his death, claim what he had sold.
The respondent went into possession in 1970 during the father's lifetime. The customary claim that a father could not disinherit his children was undermined by evidence that the husband had more wives who were given land, and the court accepted the defence that the appellants were given their portions and sold them.
Legal principles established
#- The decision of arbitrating elders is not communicated to the parties by the panel; the award is filed in court for the court to pronounce, and the aggrieved party then has 30 days to apply under order 45 rules 15 and 16.
- A party aggrieved by an arbitration award must bring his complaints within order 45 rule 15 of the Civil Procedure Rules.
Court orders
#- 1.Appeal dismissed with costs
- 2.Dismissal of the application to set aside the arbitration award affirmed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Narrates the facts and dismisses the appeal: the District Officer was not obliged to announce the elders' decision, the appellants had a spokesman and were heard, the claim of inadequate price was unsound, and the application to set aside the award was properly dismissed for non-compliance with order 45 rule 15.
I am inclined to accept the defence that the appellants were given their portion of lands and sold them and, now, after their father' death, they want to claim what was sold by him, during his lifetime.p. 2
Wrote the judgment
Takes Gachuhi JA's factual narration and addresses the two questions: the plaintiffs did not pursue before the elders the averment that the deceased was blind, and the chairman did not misconduct himself since he adjourned and obtained the court files. Appeal dismissed with costs.
I have no hesitation in holding that the appeal ought be dismissed and as Apaloo J A concurs, the appeals is dismissed with costs.p. 3
- On appeal from
- High Court of Kenya, Kakamega
- Jurisdiction invoked
- First appeal under the Civil Procedure Act and Order 45 of the Civil Procedure Rules (arbitration by consent)
Relief refused
#Setting aside of the arbitration award
The complaints did not comply with order 45 rule 15 of the Civil Procedure Rules and the elders' decision was correct
Costs
Appeal dismissed with costs to the respondent
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.
The decision of the elders is not to be communicated to the parties by the panel but the award is filed in court for the court to pronounce.
I have no hesitation in holding that the appeal ought be dismissed and as Apaloo J A concurs, the appeals is dismissed with costs.
This appeal has no merit, I would dismiss it with costs.
The learned judge was right in dismissing their application to set aside the arbitration award, because the reason given were outside the arbitration award, because the reason given were outside order 45 rule 15 of the Civil Procedure Rules.
Issues in the judgment
#The judgment contains a garbled sentence where the answer to the first question appears to be omitted
Repetition of an incomplete phrase in the same passage
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mark Mutsembi & Others v Isaiah Andati Titiya [1987] KECA 25 (KLR)", Case Analysis (1987). Civil Appeal (Kakamega High Court arbitration referral, Order 45 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/25/eng@1987-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.