SAMUEL GITHITU & ANOTHER vs DUNCAN NYAGA KARIUKI [1998] KECA 267 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that once parties agree to arbitration, a court cannot hear the case until that agreement is formally ended.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Ole Keiwua J was clothed with appropriate jurisdiction to hear the petition on 8th February 1995 while a consent order referring the matter to arbitration remained in force
- 2.Whether the proceedings before the learned Judge were a nullity
- 3.Whether the arbitrator's refusal to act affected the consent order referring the matter to arbitration
Key legal issues
#Whether the High Court had jurisdiction to hear the petition while a consent order referring it to arbitration was extant
The learned Judge had no jurisdiction; the petition was in a state of suspended animation as long as the arbitration order remained in force, and the proceedings were a nullity.
By consent under Order 45 of the Civil Procedure Rules, the dispute was referred to arbitration by Aluoch J on 25th February 1993. Rule 3(2) of that Order bars the court from dealing with the matter save as provided in the Order. The arbitrator's declining the appointment did not affect the consent order, as Pall J's order directing the parties to find a new arbitrator confirmed. Before the petition could be heard, it had to be shown the consent order had been set aside by consent or court order; nothing of the sort occurred, so the ex parte hearing and decree were a nullity.
Effect of the arbitrator's refusal to act on the consent reference
The refusal could not and did not affect the consent order; the correct remedy was an order superseding the arbitration under Order 45 rule 5(2).
The court held that although the arbitrator appointed by the parties declined the appointment, the consent order of Aluoch J remained extant, which is why Pall J directed the parties to look for a new arbitrator. The reference could only be terminated by setting aside the consent order by consent or by court order, or by superseding the arbitration under Order 45 rule 5(2). Neither step was taken, so the court itself superseded the arbitration in its final orders and directed the petition be heard de novo.
Legal principles established
#- Once a matter is referred to arbitration by consent, the court is barred from dealing with the matter in the suit except as provided in the arbitration order, and the matter remains in a state of suspended animation until the consent order is set aside or the arbitration superseded.
- An arbitrator's refusal to act does not extinguish the consent order referring the dispute to arbitration; the proper course is an order superseding the arbitration under Order 45 rule 5(2).
- Proceedings conducted in disregard of a subsisting consent reference to arbitration are a nullity.
Court orders
#- 1.Appeal allowed
- 2.Ruling and order of Ole Keiwua J dated 1st August 1995 set aside
- 3.Substituted therefor an order allowing the appellants' application dated 16th June 1995
- 4.Judgment and decree dated 5th April 1995 set aside
- 5.Petition reinstated
- 6.Order for arbitration superseded
- 7.Petition to be heard de novo
- 8.Appellants to have the costs of the appeal
- 9.Each party to bear his own costs as regards proceedings before the learned Judge
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Winding Up Cause No. 17 of 1991
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Constitution and the Civil Procedure Act/Civil Procedure Rules (Order 9B application appealed from); specific statutory provisions engaged are Order 45 rules 3(2) and 5(2) of the Civil Procedure Rules
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.
3(2) Where a matter is referred to arbitration, the court shall not, save in the manner and to the extent provided in this Order, deal with such matter in the suit.
It must therefore follow from what we have said so far, that the learned Judge had no jurisdiction to hear the petition, the same being in a state of suspended animation as long as the order for arbitration remained in force.
We accordingly allow this appeal, set aside the ruling and order of the learned Judge dated 1st August, 1995, and substitute therefor an order allowing the appellants' application dated 16th June, 1995.
Consequent upon this, we also set aside the judgment and decree dated 5th April, 1995 and reinstate the petition. The order for arbitration is superseded and the petition is to be heard de novo.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SAMUEL GITHITU & ANOTHER vs DUNCAN NYAGA KARIUKI [1998] KECA 267 (KLR)", Case Analysis (1998). Civil Appeal No. 157 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/267/eng@1998-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.