Henry Mukhwana Kwemuli v Joseph Musungu Ngachi
The bottom line
#Kenya's Court of Appeal confirmed that a 'month' in a statute means a calendar month, validating a land sale consent filed within three months.
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 application for consent to the Land Control Board was made within the prescribed three months
- 2.Whether the consent of the divisional Land Control Board was valid
- 3.Whether the arbitration by the panel of elders was properly conducted
- 4.Whether an appeal lies from a judgment entered in terms of an elders' award
Key legal issues
#Computation of the three-month period for applying for Land Control Board consent
The application made on 7 August 1980 was within the third calendar month from the agreement of 6 May 1980; the consent was valid.
A 'month' means a calendar month under Cap. 2. The period from 6 May to the end of May is not a calendar month, so the period commenced at the beginning of June. Excluding the day of the agreement and including the day of hearing, the application on 7 August fell within the third calendar month, making the consent valid.
Appealability of a judgment entered in terms of an elders' award
No appeal lies from such a judgment unless it is in excess of or not in accordance with the award; the grounds raised here were outside that scope.
Order XLV rule 17(2) of the Civil Procedure Rules restricts appeals from judgments entered in terms of an award. The appellant's grounds did not allege the judgment was contrary to the award but raised other matters not covered by the rules, so the appeal was incompetent on those grounds.
Whether consent granted outside the three-month period renders the transaction null and void (dissent)
Platt JA held that if 6 May began the period, consent on 7 August was one day late and the agreement became null and void by statute; arbitrators could not validate it.
Applying the Halsbury formulation, a calendar month from an arbitrary date expires the day before the corresponding date in the succeeding month. Excluding the first day, the period from 7 May ended 6 August; consent given on 7 August was out of time and deemed refused. A statute had declared the agreement null and void, which arbitration could not cure.
Legal principles established
#- A reference to a 'month' in a statute means a calendar month, per the Interpretation and General Provisions Act (Cap. 2).
- In computing a statutory period, the day on which the triggering event occurs is excluded but the day on which the act is done or heard is included.
- No appeal lies from a judgment entered in terms of an arbitration award unless the judgment is in excess of or not in accordance with the award.
- A calendar month running from an arbitrary date expires with the day in the succeeding month immediately preceding the corresponding day, unless the succeeding month has fewer days, in which case it expires at the end of that month.
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the judgment
Held the Land Control Board consent was granted one day out of time; the sale agreement became null and void by statute and could not be validated by arbitration; would have allowed the appeal, set aside the judgments below and dismissed the plaint.
I would therefore allow the appeal and set aside the judgments of the High Court and of the Resident Magistrate and substitute therefor an order that the plaint be dismissed.p. 4
Wrote the judgment
Agreed the appeal should be dismissed: no appeal lies from a judgment entered in terms of an elders' award except where the judgment exceeds or departs from the award; and on the merits the consent was validly obtained within time.
I also agree that this appeal should be dismissed.p. 5
- On appeal from
- High Court at Kakamega
- Jurisdiction invoked
- Second appeal from the High Court under the appellate structure of the Civil Procedure Act; appeal against adoption of an elders' award governed by Order XLV rule 17(2) of the Civil Procedure Rules
Relief refused
#Appellant's appeal against adoption of the elders' award and challenge to the validity of the Land Control Board consent
The application for consent was made within the prescribed three calendar months; the consent was valid; and no appeal lies from a judgment entered in terms of the award on grounds unrelated to it
Costs
Appeal dismissed with costs to the respondent (Platt JA dissenting would have awarded the appellant costs in this Court and below).
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.
In my judgment the only live issue in the case is whether the application for consent was made within the prescribed time.
Reference to a “month” in a statute is to be understood as a calendar month. The Interpretation and General Provisions Act Cap. 2, says so.
The application to the divisional Land Control Board was made on August 7th 1980, well within the third calendar month from the date of the agreement. It was therefore a valid consent.
when the judgement has been entered in terms of the award there is no appeal from that judgment unless the judgment entered is in excess of or not in accordance with the award
For that reason I have come to the conclusion that this appeal has no merit and I would dismiss it with costs. As Gachuhi JA agrees, it is so ordered.
Issues in the judgment
#Conflicting dates for the application: register entry 6 May 1980 versus application dated 12 June 1980, both in Gachuhi JA's judgment
Nyarangi JA's computation (period commencing beginning of June) differs from Gachuhi JA's (commencing 7 May, expiring midnight 6 August) yet both find the consent valid
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Mukhwana Kwemuli v Joseph Musungu Ngachi", Case Analysis (1988). Civil Appeal 125 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/137/eng@1988-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.