Muhindi & another v Mugendo [1991] KECA 10 (KLR)

The trial judge, following a dissenting judgment of Apaloo JA, treated non-signature as a curable procedural defect. The court held that while legislative amendment might save an award from invalidation by one member's refusal to sign, here not one or two but all members failed to sign. Signatures authenticate what is a delegated statutory decision, and without conformity with the principles of justice the award could not stand.

The affidavit of Reuben Kagai, the only and unchallenged evidence on the point, established that one nominated elder was not allowed to sit and another not allowed to participate. The trial judge erred in rejecting that unchallenged evidence without cross-examination. Excluding one side's elder offends the normal rules of justice and fair play so that justice, even if done, is not seen to be done.

If strict technical conformity were required, a reference to arbitration would be superfluous. However, a court-ordered reference may demand stricter conformity with judicial principles than a consensual arbitration under the Arbitration Act. Here the panel sat three instead of four elders, an elder was excluded, and the award was unsigned - defects that went beyond mere technicality.